LCR V USA - LCR Preliminary Response To Request For Stay

Case: 10-56634 10/20/2010 Page: 1 of 18 ID: 7516021 DktEntry: 4-1
Case No. 10-56634
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
LOG CABIN REPUBLICANS,

a non-profit corporation
Plaintiff-Appellee,
vs.
UNITED STATES OF AMERICA; ROBERT M. GATES,

SECRETARY OF DEFENSE, in his official capacity
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA
No. CV 04-8425, Honorable Virginia A. Phillips, Judge
PRELIMINARY RESPONSE OF APPELLEE LOG CABIN REPUBLICANS

TO GOVERNMENT’S REQUEST FOR TEMPORARY
“ADMINISTRATIVE” STAY
Dan Woods (CA SBN 78638)

dwoods@whitecase.com
Earle Miller (CA SBN 116864)
emiller@whitecase.com
WHITE & CASE LLP
633 West Fifth Street, Suite 1900
Los Angeles, California 90071
Telephone: (213) 620-7700
Facsimile: (213) 452-2329
Attorneys for Plaintiff/Appellee
Log Cabin Republicans
LOSANGELES 882991 (2K)

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for
Log Cabin Republicans certifies that:
1. Log Cabin Republicans is a not-for-profit corporation organized
pursuant to the District of Columbia Nonprofit Corporation Act and section
501(c)(4) of the Internal Revenue Code.
2. Log Cabin Republicans issues no stock and has no parent
corporation. No publicly-held corporation owns ten percent or more of the
stock of Log Cabin Republicans.
Dated: October 20, 2010 Respectfully submitted,
WHITE & CASE LLP
By: /s/ Dan Woods

Aaron Kahn (CA SBN 238505)
Los Angeles, CA 90071
(213) 620-7700


Log Cabin Republicans (“Appellee” or “Log Cabin”), opposes the request of
appellants the United States of America and Robert M. Gates, Secretary of Defense
(“Appellants”) for a temporary administrative stay pending appeal of the judgment
entered by the District Court on October 12, 2010, in the case captioned, Log
Cabin Republicans v. United States of America and Gates, Case No. CV 04-08425-
VAP, United States District Court for the Central District of California.
The government’s request for an “administrative stay” (by which it
apparently means a temporary stay pending fuller briefing on its wider request for
a stay of the district court’s permanent injunction pending appeal) should be
denied. Each argument that the government asserts as a basis for a stay has already
been raised to the district court, which rejected them all – not cursorily, or in
passing at an oral argument, but in extensive reasoned opinions at multiple stages
of the proceedings below. The district court’s thoughtful analysis of each
argument the government makes here should not be rejected in a summary
proceeding, on less than one day’s consideration.
Furthermore, the district court’s injunction does not require appellants to
take any affirmative steps (such as re-designing facilities, revising military pay and
benefits scales, or anything else); nor does the injunction require them to refrain
from developing the training and educational materials and policy revisions that
LOSANGELES 882991 (2K) 1

the Stanley Declaration claims they need to do. The only thing the injunction
requires is that appellants cease enforcing and applying the Don't Ask, Don't Tell
policy (“DADT”), and discontinue any pending investigations commenced under
that policy. The appellants have apparently already done so, since the injunction
was issued on October 12; there is no reason to alter the current status quo and
excuse the appellants from complying with the injunction for the next few days
while their motion for stay pending appeal is properly briefed and decided in this
Court.
The government has already acted nimbly in response to the district court’s
injunction: it has instructed its field recruiting offices to process applications for
enlistment from openly gay and lesbian applicants.1 That guidance was issued last
Friday, October 15, and news reports indicate that applications from such
individuals are being received (and presumably processed) without incident. The
fact that the government can and did issue such instructions and comply with the
injunction immediately shows that the military will not sustain irreparable harm
from compliance and belies the need for any temporary stay. Should the Court
grant the administrative stay but deny the stay pending appeal, the military will
have gone from enforcing DADT (pre-injunction), to not enforcing DADT (post-
1
Press Release (October 15, 2010) (Ex A).

injunction), to enforcing DADT (granting administrative stay), to not enforcing
DADT again (denying stay pending appeal), all in a matter of weeks. The simpler
and more orderly solution is simply to decide the stay motion and deny the
temporary stay.
Indeed, the evidence at trial demonstrated that no harm would occur by
ceasing enforcement of DADT. And a week after the Department of Defense
ceased enforcing DADT, that is exactly what occurred - nothing.
A stay of injunction under Fed. R. App. P. 8 is considered “extraordinary
relief” for which the moving party bears a “heavy burden.” See Winston-
Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231, 31 L. Ed. 2d
441, 92 S. Ct. 1236 (1971). Four factors regulate the issuance of a stay of a district
court judgment, including stay of injunction, pending appeal: (1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S.
770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987). These are the same four
factors that must be shown by a party moving for an injunction in the first place,
see Winter v. Natural Resources Defense Council, ___ U.S. ___, 172 L. Ed. 2d

249, 129 S. Ct. 365, 374 (2008), and analysis of the factors in the one situation
informs the analysis in the other. See Golden Gate Rest. Ass’n v. City and County
of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008).
The moving party must show the existence of all four factors; and the
moving party must show not merely the “possibility” of irreparable injury absent a
stay, as appellants contend, but the likelihood of irreparable injury. Winter, 129
S.Ct. at 375 (rejecting the Ninth Circuit’s earlier “possibility” standard as
articulated in, e.g., Golden Gate Rest. Ass’n, 512 F.3d at 1115, and Lopez v.
Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983), cited by appellants); Alliance for the
Wild Rockies v. Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149, at *5, 8
(9th Cir. Sept. 22, 2010). The party requesting a stay bears the burden of
demonstrating that the circumstances justify an exercise of that discretion. Nken v.
Holder, ___ U.S. ___, 129 S. Ct. 1749, 1761, 173 L. Ed. 2d 550 (2009). The
government’s showing here fails all four factors.
The District Court arrived at the appealed from injunction against
enforcement of Don’t Ask Don’t Tell (“DADT”) after six years of litigation,
extensive motion briefing, discovery, a two week bench trial, and hundreds of
pages of considered rulings. The government is trying to undo these considered
rulings in one day.

Because the government grossly understates the attention which the District
Court gave the issues underlying this constitutional challenge, a brief history is in
order. That history demonstrates that the injunction is the only avenue to
vindicating the constitutional rights of gay and lesbian servicemembers in our
armed forces.
Log Cabin filed this case on October 12, 2004 and the government moved to
dismiss. On March 21, 2006, the District Court found that Log Cabin lacked
associational standing and permitted the filing of an amended complaint. Log
Cabin did so. The District Court ordered Log Cabin to identify at least one
member of the organization who would have standing to sue individually. Log
Cabin complied. It provided the Court with two members: Alexander Nicholson
and a member who served on active duty in the military and so filed an anonymous
declaration under the pseudonym John Doe.
The government again moved to dismiss. After several more rounds of
briefing, and after this Court decided Witt v. Department of the Air Force, 527
F.3d 806 (9th Cir. 2008), the District Court, on June 9, 2009, granted in part and
denied in part the motion to dismiss. The Court dismissed Log Cabin’s equal
protection claim but found that Log Cabin had stated claims under substantive due

process and the First Amendment.2 The Court also found Log Cabin had
established “standing to bring suit on behalf of current and former homosexual
members of the armed forces.”3
Following the District Court’s order, on July 24, 2009, that the government
is not exempt from its obligation to participate in discovery,4 extensive discovery
ensued. Log Cabin received from the government significant evidence that,
contrary to the government’s arguments, demonstrated that DADT impeded the
government’s stated interests of unit cohesion, morale, and readiness.
For instance, Log Cabin deposed Lt. Colonel Jamie Brady as one of the
government’s Federal Rule of Civil Procedure 30(b)(6) witnesses. Col. Brady
confirmed that the military knowingly deploys servicemembers under investigation
for homosexual conduct, which greatly undermines the government argument that
DADT is needed for military readiness.
Following discovery, the government moved for summary judgment. The
District Court, over the course of two hearings and two opinions denied that
2
Order Denying in Part and Granting in Part Motion to Dismiss (June 9, 2009) (Ex. B).
3
Id. at 14.
4
Minute Order Denying Defendant’s Request Regarding Discovery (July 24, 2009) (Ex. C).

motion. The Court’s orders include extensive reasoning demonstrating that Log
Cabin had carried its burden as to standing and on the merits to permit a trial.5
It is the trial that the government glosses over the most in its Emergency
Motion. Log Cabin presented over twenty witnesses. They included four
witnesses who established Log Cabin’s organizational standing. They included
seven leading experts, from a variety of disciplines, who testified regarding the
history and effect of DADT. They included six lay witness former
servicemembers who demonstrated, inter alia, that their discharge under DADT
actually impaired unit cohesion and readiness in their units. And they included
several government witnesses (via Rule 30(b)(6) deposition) who explained, inter
alia, that the military allows individuals with criminal convictions to enlist while it
categorically excludes openly gay or lesbian individuals, and that the largest
category of servicemembers discharged under DADT are individuals who were
never deployed to a combat zone. Log Cabin also introduced numerous
government documents produced in discovery, well over 100 exhibits in all.
Log Cabin also presented several admissions from officials at the highest
level of government demonstrating that DADT actually detracts from its stated
5
See Order Denying in Part Motion for Summary Judgment (May 27, 2010) (Ex. D); Order Denying Defendants’
Motion for Summary Judgment (July 6, 2010) (Ex. E); Transcript of Proceedings (April 24, 2010) (Ex. F);
Transcript of Proceedings (June 28, 2010) (Ex. G).

objectives. For instance, the Commander in Chief believes that DADT “doesn’t
contribute to our national security,” “weakens our national security,” and reversing
DADT is “essential for our national security.” (trial exs. 85, 305, 306, and 321)
Log Cabin presented evidence from Admiral Mike Mullen, the Chairman of
the Joint Chiefs of Staff, that DADT “forces young men and women to lie about
who they are in order to defend their fellow citizens,” that he is unaware of any
studies or evidence suggesting that repeal of DADT would undermine unit
cohesion, and that “allowing homosexuals to serve openly is the right thing to do”
and is a matter of “integrity.” (trial ex. 312 at 59, 62; trial ex. 330). Log Cabin
also introduced Defense Secretary Gates’ admission that the assertions purportedly
justifying DADT’s intrusion on the personal and private lives of homosexuals
“have no basis in fact.” (trial Ex. 312 at 69).
The government, by contrast, presented no evidence. Zero. The
government chose to rely exclusively on the 1993 legislative history of the statute.
The government had ample opportunity to present at trial any evidence that DADT
actually furthered any of its stated purposes and it chose not to do so. That is
because there is no such evidence. Based on the record presented at trial, the
District Court had no choice but to find in favor of Log Cabin.

Following trial, on September 9, 2010, the District Court issued an 85 page
memorandum opinion explaining that Log Cabin had established its standing and
that Log Cabin had proved that DADT violates the Fifth Amendment guarantee of
substantive due process and the First Amendment. The Court set a briefing
schedule for Log Cabin to submit a proposed judgment and injunction and for the
government to file any objections thereto.
The district court considered the government’s objections and issued the
appealed-from injunction. In addition, it very slightly amended its Memorandum
Opinion and issued 84 pages of findings of fact and conclusions of law.6
The government then applied ex parte for a stay in the district court. The
government supported its application with doomsday scenarios of bureaucratic
difficulties. The government failed totally to explain why it is likely to prevail on
the merits and ignored the import of Lawrence v. Texas, 539 U.S. 558, 156 L. Ed.
2d 508, 123 S. Ct. 2472 (2003), and this Court's decision in Witt v. Air Force. It
also ignored that DADT deprives American servicemembers of their constitutional
rights, which is alone sufficient irreparable injury to deny a stay. Log Cabin
opposed the application. On October 18, 2010, the district court denied the stay
request in a six-page opinion. The district court correctly concluded that the
6
Findings of Fact and Conclusions of Law After Court Trial (October 12, 2010) (Ex. H).

government had not shown any of the injury it claims will occur because, were any
of those harms imminent in a post-DADT military, it would have presented
evidence of them earlier.
The motion for stay pending appeal not only presents the same arguments
that the district court already considered and rejected with regard to the scope of
the injunction, but also attempts to relitigate matters that were extensively briefed
below, and subjects of a thorough presentation of evidence at trial. Appellee’s
response to the motion for stay will discuss all these matters in greater detail but in
summary, for consideration on this preliminary application:
• Standing – the district court heard evidence of Log Cabin’s standing from
four witnesses at trial and devoted extensive analysis to the issue in its
Memorandum Opinion, at 2-13, finding that Log Cabin had proper
associational standing to bring this facial challenge to the Don't Ask, Don't
Tell Act. Appellants’ motion omits key facts heard and determined by the
district court on this issue, including pertinent sections of Log Cabin’s
Bylaws. Appellants pretend that the case below was brought solely on behalf
of the two individual Log Cabin members John Nicholson and Lt. Col. John
Doe, which blatantly misrepresents the theory under which the case was
presented and tried;

• The Witt Standard – the district court determined that controlling Ninth
Circuit precedent, Witt v. Department of the Air Force, supra, called for
heightened scrutiny of the government’s justification for the statute, and
applied that standard to its receipt and evaluation of evidence at the two-
week bench trial it conducted;
• Scope of the Injunction – the district court repeatedly, and properly, rejected
the government’s contention, which it repeats here, that an injunction should
run in favor only of the two Log Cabin members through whom it established
standing, and held (Injunction Order at 4-6) that under Bresgal v. Brock, 843
F.2d 1163 (9th Cir. 1987) and numerous other cases an associational plaintiff
bringing a facial constitutional challenge is entitled to nationwide relief
binding the governmental defendant wherever it operates;
• Military Deference – the government now argues that courts should defer to
the judgment of military commanders on military matters, but it presented no
evidence at trial that Don't Ask, Don't Tell, as implemented, enhances
military readiness or other military objectives, and understandably so since
the evidence at trial was not only that the nation’s top civilian and military
leaders, including the President, the Secretary of Defense, and the Chairman
of the Joint Chiefs of Staff unanimously oppose the Don't Ask, Don't Tell

policy, but that Don't Ask, Don't Tell, in the President’s words, “doesn’t
contribute to our national security,” “weakens our national security,” and its
reversal is “essential for our national security” (Trial Ex. 85; Memo. Op. at
65);
• Precipitous Change by Court Order – the government’s repeated invocation
of the supposed need for deference to an “orderly” process of “repeal” of the
Don't Ask, Don't Tell statute, rather than immediate invalidation of the
statute by an Article III court finding it unconstitutional, is misleading in
three respects. First, it pretends that repeal of the statute by the political
branches is a certainty with a defined timeline; the application refers to the
statute’s eventual “repeal” over twenty times. In fact, as the district court
recognized on multiple occasions in denying the government’s five previous
requests for a stay, political repeal is subject to numerous cascading
contingencies that may never be met, including a favorable report from the
military working group investigating the matter; acceptance of those
conclusions by both the Executive and the military; a favorable vote in the
Senate (where at least one Senator has already stated he will filibuster any
repeal bill); and a successful reconciliation of the House and Senate versions
of any repeal bill. Second, it misleadingly suggests that the district court’s
decision came as a complete surprise, requiring the government to respond

“overnight” to the requirements of the injunction, whereas in fact the trial of
this case was set over a year ago, in July 2009; the trial took place in July
2010; and the district court’s initial memorandum opinion was issued on
September 9, 2010, and the government has had ample time to prepare for
the possibility that the Don't Ask, Don't Tell policy would be invalidated.
And third, it argues that judicial invalidation of a military policy, as opposed
to legislative repeal, will lead to confusion and uncertainty; but extensive
evidence presented at trial established that the analogous policies in Canada
(Trial Tr. 1280-87), which were ended in response to court orders, were
readily accepted and led to no disruption of the sort the government conjures
in its motion.
• Purported Circuit Conflicts – the government’s motion in this Court
continues to rely (see footnote 2 on page 11) on outdated cases from other
Circuits which predate the Supreme Court’s decision in Lawrence v. Texas,
and which the district court repeatedly held irrelevant on that basis. Indeed,
and tellingly, the government’s motion does not cite Lawrence – the case that
opened the path for this lawsuit in the first place – at all.

Given the emergency nature of the temporary stay application, the Court
may also be aided by reviewing Log Cabin’s opposition to the government’s stay
motion filed in the District Court. It is also attached.7
CONCLUSION
For all the reasons set forth in this Brief, it is respectfully requested that
Appellants’ motion for a temporary administrative stay be denied.
WHITE & CASE LLP
By: /s/ Dan Woods

(213) 620-7700

7
Opposition of Log Cabin Republicans to Defendants’ Ex Parte Application for Emergency Stay of Injunction
(October 15, 2010) (Ex. I).

STATEMENT OF RELATED CASES
Log Cabin Republicans is unaware of any pending related cases before this
Court.
WHITE & CASE LLP
By: /s/ Dan Woods

(213) 620-7700


CERTIFICATE OF SERVICE
I am employed in the County of Los Angeles, State of California. I am over
the age of 18 and not a party to the within action. My business address is 633 West
Fifth Street, Suite 1900, Los Angeles, California 90071.
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on October 20, 2010.
I certify that all participants in the case who are registered CM/ECF users
and that service will be accomplished by the appellate system.
I declare that I am employed in the office of a member of the bar of this
Court at whose direction the service was made.
Executed on October 20, 2010, at Los Angeles, California.
/s/ Earle Miller

Earle Miller

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-8425-VAP (Ex)
non-profit corporation, )
12 ) [Motion filed on June 12,
Plaintiff, ) 2006]
13 )
v. ) ORDER DENYING IN PART AND
14 ) GRANTING IN PART MOTION TO
UNITED STATES OF AMERICA ) DISMISS
15 and DONALD H. RUMSFELD, )
SECRETARY OF DEFENSE, in )
16 his official capacity, )
)
17 Defendants. )
________________________ )
18
19 Defendants United States of America and Donald
20 Rumsfeld's ("Defendants") Motion to Dismiss ("Motion")
21 came before the Court for hearing on March 9, 2009.
22 After reviewing and considering all papers filed in
23 support of, and in opposition to, the Motion, as well as
24 the arguments advanced by counsel at the hearing, the
25 Court grants the Motion in part and denies it in part.
26
27 Log Cabin Republicans, ("Plaintiff" or "Plaintiff
28 association"), a nonprofit corporation whose membership
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1 includes current, retired, and former homosexual1 members

2 of the U.S. armed forces, challenges as "restrictive,
3 punitive . . .discriminatory," and unconstitutional the
4 "Don't Ask Don't Tell" policy ("DADT") of Defendants,
5 including both the statute codified at 10 U.S.C. section
6 654 and the implementing regulations appearing at
7 Department of Defense Directives ("DoDD" or "implementing
8 regulations") 1332.14, 1332.30, and 1304.26. (First
9 Amended Complaint ("FAC") ¶ 6.) Defendants' Motion to
10 Dismiss ("Motion") Plaintiff's FAC is now before the
11 Court.2
12
13 I. BACKGROUND
14 A. Facts
15 1. Plaintiff and its members
16 Assuming all the facts in Plaintiff's FAC are true,
17 as the Court must when considering a motion to dismiss
18 under Rule 12(b)(6), Plaintiff is a nonprofit corporation
19 dedicated to the interests of homosexuals and organized
20 under the laws of the District of Columbia. (FAC ¶ 10.)
21 Plaintiff's members include current, retired, and former
22 members of the U.S. armed forces who seek to serve
23 "without fear of investigation, discharge, stigma,
24
1
25 The Court uses the term "homosexual" for the sake of
consistency with the Ninth Circuit's opinion in Witt v.
26 Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008).
2
27 The case was transferred to this Court's docket on
October 8, 2008, upon the resignation of the Honorable
28 George P. Schiavelli.
2
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1 forfeiture of fundamental liberties, harassment and other

2 negative repercussions" imposed in connection with their
3 homosexuality. (FAC ¶¶ 8, 12, 17.)
4
5 a. Current members of the armed forces
6 Plaintiff association includes homosexual persons
7 currently in the armed forces, among them "John Doe,"
8 ("Doe") a homosexual man, who submitted a declaration in
9 support of the FAC. (FAC ¶¶ 17-21.) DADT prevents Doe
10 from "communicat[ing] the core of his emotions and
11 identity to others" and from exercising his
12 "constitutionally protected right to engage in private,
13 consensual homosexual conduct without intervention of the
14 government." (FAC ¶ 20.)3
15
16 Doe fears that making his name public in connection
17 with this action will subject him to "investigation and
18 discharge" as well as "other possible harm." (FAC ¶ 21.)
19
20 b. Retired members of the armed forces
21 Plaintiff's members also include retired armed forces
22 personnel who are homosexuals. They remain subject to
23 DADT and "fear exercising their constitutional rights. .
24 . or making public their own names" as they fear
25
26
27 3
Plaintiff does not define "private, consensual
28 homosexual conduct."
3
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1 Defendants might deny them retirement benefits. (FAC ¶

2 22.)
3
4 c. Former members of the armed forces
5 Those separated from the armed forces pursuant to
6 DADT, including John Alexander Nicholson ("Nicholson"),
7 are also members of Plaintiff association. (FAC ¶¶ 6, 7,
8 12.) Nicholson is homosexual, fluent in several
9 languages, including Arabic, and has a Bachelor's degree
10 in International Relations. He enlisted in the U.S. Army
11 in 2001 and received training in human intelligence
12 collection. (FAC ¶ 13.) While in the Army, pursuant to
13 DADT, Defendants denied him the ability to communicate
14 his emotions and identity to others as well as the right
15 to engage in private, consensual sexual conduct with the
16 sex to whom he is attracted without the government's
17 intervention. (FAC ¶ 14.) Nicholson became subject to
18 separation proceedings pursuant to DADT in 2002 and was
19 discharged. (FAC ¶¶ 14.) His discharge caused Nicholson
20 emotional distress. (FAC ¶ 14.) DADT continues to
21 prevent Nicholson from returning to the Army. (FAC ¶
22 16.)
23
24 2. DADT
25 DADT includes both the statutory language appearing
26 at 10 U.S.C. section 654 and the implementing regulations
27 appearing as DoDDs 1332.14, 1332.30, and 1304.26. (FAC ¶
28
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1 28.) DADT can be triggered by three kinds of "homosexual

2 conduct:" (1) by "homosexual acts"; (2) statements that
3 one "is a homosexual"; or (3) marriage or an attempt to
4 marry a person of the same biological sex. 10 U.S.C. §
5 654 (b); DoDD 1332.14 at E3.A4.2.4; 1332.30 at 1-1.
6
7 a. "Homosexual acts"
8 First, Defendants may initiate separation proceedings
9 if a service member engages in a "homosexual act,"
10 defined as "(A) any bodily contact, actively undertaken
11 or passively permitted, between members of the same sex
12 for the purpose of satisfying sexual desires; and (B) any
13 bodily contact which a reasonable person would understand
14 to demonstrate a propensity or intent to engage in an act
15 described in subparagraph (A)." 10 U.S.C. §§ 654 (b)(1),
16 (f)(3)(A)-(B). Such acts include holding hands and
17 kissing. (FAC ¶ 31 citing DoDD 1332.14 at
18 E3.A4.1.2.4.1.)
19
20 b. Statements one "is a homosexual"
21 Second, Defendants may initiate separation if a
22 service member makes a statement "he or she is a
23 homosexual . . . or words to that effect." 10 U.S.C. §
24 654(b)(2). These words create a presumption the service
25 member is a "person who engages in, attempts to engage
26 in, has a propensity to engage in, or intends to engage
27 in homosexual acts." 10 U.S.C. § 654(b). A propensity
28
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1 is "more than an abstract preference or desire to engage

2 in homosexual acts; it indicates a likelihood that a
3 person engages or will engage in homosexual acts." DoDD
4 1332.14 at E3.A1.1.8.1.2.2.
5
6 c. Marriage or attempted marriage to a person
7 of the same sex
8 The third route to separation under DADT, marriage or
9 attempted marriage to a person of the same sex, is self-
10 explanatory.
11
12 d. Discharge
13 Once Defendants find a service member has engaged in
14 "homosexual conduct," as defined above, Defendants will
15 discharge him or her unless the service member can
16 demonstrate, by a preponderance of the evidence, that,
17 inter alia, such acts are not his or her usual or
18 customary behavior and that he or she has no propensity
19 to engage in "homosexual acts." (FAC ¶¶ 30-33); 10
20 U.S.C. § 654(b)(1); DoDD 1332.14 at E3.A1.1.8.1.2.
21
22 3. Congressional findings of fact
23 Congress made 15 factual findings in connection with
24 the statutory embodiment of DADT. They state, in
25 relevant part:
26
27
28
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1 ! "There is no constitutional right to serve in the

2 armed forces." 10 U.S.C. § 654 (a)(2).
3
4 ! "Military life is fundamentally different from
5 civilian life in that . . . the military society is
6 characterized by its own laws, rules, customs, and
7 traditions, including numerous restrictions on
8 personal behavior, that would not be acceptable in
9 civilian society." 10 U.S.C. § 654(a)(8)(B).
10
11 ! "The standards of conduct for members of the armed
12 forces regulate a member's life for 24 hours each day
13 beginning at the moment the member enters military
14 status and not ending until that person is discharged
15 or otherwise separated from the armed forces." 10
16 U.S.C. § 654(a)(9).
17
18 ! "The presence in the armed forces of persons who
19 demonstrate a propensity or intent to engage in
20 homosexual acts would create an unacceptable risk to
21 the high standards of morale, good order and
22 discipline, and unit cohesion that are the essence of
23 military capability." 10 U.S.C. § 654(a)(15).
24
25 4. Impact of DADT
26 According to Plaintiff, pursuant to DADT Defendants
27 have discharged nearly 10,000 members of the U.S. armed
28
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1 forces, including those in non-combat positions. (FAC ¶

2 34-36.) Nevertheless, Defendants have discharged 40%
3 fewer persons pursuant to DADT since the outbreak of the
4 wars in Afghanistan and Iraq. (FAC ¶ 36.)
5
6 B. Procedural History
7 Plaintiff filed its Complaint on October 12, 2004.
8 On December 13, 2004, Defendants moved to dismiss the
9 Complaint, alleging, inter alia, that Plaintiff lacked
10 standing. The Honorable George P. Judge Schiavelli
11 granted the motion to dismiss the Complaint with leave to
12 amend on March 21, 2006.
13
14 On April 28, 2006, Plaintiff timely filed its FAC,
15 attaching the declaration of Nicholson, a current member
16 of Plaintiff organization and a former member of the U.S.
17 Army. According to the FAC, DADT violates the First and
18 Fifth Amendments to the U.S. Constitution by violating
19 guarantees to: (1) substantive due process; (2) equal
20 protection; and (3) freedom of speech. On June 11, 2007,
21 Plaintiff filed the declaration of Doe, a current member
22 of Plaintiff organization, a homosexual, and a current
23 U.S. Army reservist on active duty.
24
25 On June 12, 2006, Defendants filed their Motion;
26 Plaintiff opposed; Defendants replied. After conducting
27 a hearing on the Motion and receiving supplemental
28
8
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1 authorities from both sides, the Court entered an order

2 staying this action on May 23, 2008 in light of the Ninth
3 Circuit's May 21, 2008 decision in Witt v. Dep't of the
4 Air Force, 527 F.3d 806.
5
6 After the case was transferred to this Court in late
7 2008, it held a status conference on January 28, 2009,
8 lifted the stay, set a hearing date for the Motion, and
9 permitted the parties to submit additional authority
10 regarding the substantive due process challenge.
11 Defendants filed their supplemental brief addressing the
12 issue of substantive due process on February 17, 2009
13 ("Defs.' Supp'l Br.") and Plaintiff filed its submission
14 on February 27, 2009 ("Pl.'s Supp'l Br.").
15
16 II. LEGAL STANDARD
17 Under Rule 12(b)(6), a party may bring a motion to
18 dismiss for failure to state a claim upon which relief
19 can be granted. As a general matter, the Federal Rules
20 require only that a plaintiff provide "'a short and plain
21 statement of the claim' that will give the defendant fair
22 notice of what the plaintiff's claim is and the grounds
23 upon which it rests." Conley v. Gibson, 355 U.S. 41, 47
24 (1957) (quoting Fed. R. Civ. P. 8(a)(2)); Bell Atlantic
25 Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964
26 (2007). In addition, the Court must accept all material
27 allegations in the complaint – as well as any reasonable
28
9
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1 inferences to be drawn from them – as true. See Doe v.

2 United States, 419 F.3d 1058, 1062 (9th Cir. 2005); ARC
3 Ecology v. U.S. Dep't of Air Force, 411 F.3d 1092, 1096
4 (9th Cir. 2005).
5
6 "While a complaint attacked by a Rule 12(b)(6)
7 motion to dismiss does not need detailed factual
8 allegations, a plaintiff's obligation to provide the
9 'grounds' of his 'entitlement to relief' requires more
10 than labels and conclusions, and a formulaic recitation
11 of the elements of a cause of action will not do." Bell
12 Atlantic, 127 S. Ct. at 1964-65 (citations omitted).
13 Rather, the allegations in the complaint "must be enough
14 to raise a right to relief above the speculative level."
15 Id. at 1965.
16
17 Although the scope of review is limited to the
18 contents of the complaint, the Court may also consider
19 exhibits submitted with the complaint, Hal Roach Studios,
20 Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19
21 (9th Cir. 1990), and "take judicial notice of matters of
22 public record outside the pleadings," Mir v. Little Co.
23 of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988).
24
25 III. DISCUSSION
26 Defendants move for dismissal of Plaintiff's FAC on
27 four grounds: (1) Plaintiff lacks standing to bring suit
28
10
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1 on behalf of current members of the armed forces; and

2 Plaintiff fails to state a claim for violation of the
3 constitutional guarantees to (2) substantive due process;
4 (3) equal protection; and (4) freedom of speech.
5
6 A. Standing
7 Plaintiff brings suit on behalf of its members who
8 are homosexuals and current or former members of the
9 armed forces. Pursuant to Hunt v. Washington State Apple
10 Advertising Commission, 432 U.S. 333, 343 (1977),
11 Plaintiff, as an association that has not suffered any
12 injury itself, may assert associational standing to sue
13 in a representative capacity for injuries to its members
14 by showing: (1) at least one member would have standing,
15 in his or her own right, to present the claim asserted by
16 the association; (2) the interests sought to be protected
17 are germane to the association's purpose; and (3) neither
18 the claim asserted nor the relief requested requires that
19 the members participate individually in the suit. See
20 Hunt, 432 U.S. at 343, 376-79.
21
22 1. Standing asserted under Complaint
23 The Court dismissed the original Complaint for lack
24 of standing because Plaintiff failed to allege compliance
25 with the first prong of the Hunt test: Plaintiff
26 "fail[ed] to identify a single individual who is (1) an
27 active member of [Plaintiff]; (2) has served or currently
28
11
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1 serves in the Armed Forces; and (3) has been injured by

2 the policy." (March 2006 J. Schiavelli Order ("2006
3 Order") 15:11-14.) The Court required Plaintiff "to
4 identify, by name, at least one of its members injured by
5 the subject policy if it wishes to proceed with this
6 action." (2006 Order 17:9-10.)
7
8 The Court explicitly rejected Plaintiff's contention
9 it ought to be able to bring suit on behalf of current
10 members of the military without naming them because they
11 fear discharge pursuant to DADT. (2006 Order 16.)
12
13 2. Standing asserted under the FAC
14 Plaintiff's FAC properly alleges standing to bring
15 suit. It submits the declarations of Nicholson and Doe,
16 current members of Plaintiff organization. Defendants
17 assert Plaintiff nevertheless cannot assert the claims in
18 the FAC on behalf of current service members.4 (Mot.
19 7:8-9.) Defendants argue the 2006 Order requires
20 Plaintiff to name a currently serving member of the armed
21 forces. The plain text of the Order, however, requires
22 Plaintiff only to name a current member of Plaintiff
23 association, not a current member of the armed forces.
24 (Mot. 8; 2006 Order 17:8-10.) Accordingly, the Court
25
4
26 In its most recent briefing Defendants did not
reiterate their challenge to Plaintiff's standing to sue
27 on behalf of former service persons. Plaintiff produced
the declaration of Nicholson, a former service member
28 discharged pursuant to DADT.
12
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1 denies the Motion insofar as it is based on the claimed

2 failure to amend in compliance with the 2006 Order.
3
4 Defendants also contend Plaintiff cannot assert
5 claims on behalf of currently active service members
6 because the 2006 Order granting leave to amend did not
7 permit Plaintiff to bring suit on behalf of anonymous
8 members or former members of the armed forces, despite
9 their professed fear of investigation, discharge, and
10 loss of retirement benefits. (2006 Order 16-17, Mot. 8-
11 9.)
12
13 The Court declines to find Plaintiff's new
14 allegations insufficient to justify standing. First,
15 this is "the 'unusual case' where nondisclosure of the
16 party's identity 'is necessary . . . to protect a person
17 from harassment, injury, ridicule or personal
18 embarrassment." (Contra Mot. 9.) Does I Thru XXXIII v.
19 Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.
20 1981).
21
22 Even leaving aside the issue of the propriety of
23 pseudonyms, however, the allegations are sufficient.
24 Pursuant to Associated General Contractors of California,
25 Inc. v. Coalition for Economic Equity, 950 F.2d 1401,
26 1406-07 (9th Cir. 1991), the declaration of one member of
27 an association that he suffered a harm, coupled with
28
13
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1 general assertions that other members would suffer

2 similar harm, suffices to confer standing on an
3 association. Associated Gen'l Contractors, 950 F.2d at
4 1406-07 (declaration one member was discouraged from
5 bidding on contract enough to confer standing on
6 organization to challenge ordinance regulating
7 preferences in bidding). (Opp'n 4.) Here, as in
8 Associated General Contractors, Plaintiff furnishes the
9 declaration of a named member of the organization,
10 Nicholson, stating he has been harmed, and asserts other
11 members of the association will suffer similar fates.
12 This satisfies the first prong of the Hunt test. See
13 Associated Gen'l Contractors, 950 F.2d at 1406-07; Hunt,
14 432 U.S. at 333, 341-43. Accordingly, the Court finds
15 Plaintiff has standing to bring suit on behalf of current
16 and former homosexual members of the armed forces.
17
18 B. Substantive Due Process
19 Plaintiff asserts DADT violates the substantive due
20 process rights of its members. Defendant moves the Court
21 to dismiss this claim. Plaintiff relies on Witt, where
22 the Ninth Circuit remanded the case for an as-applied
23 substantive due process review, and Lawrence v. Texas,
24 where the Supreme Court held a Texas criminal sodomy law
25 violated substantive due process. Witt, 527 F.3d at 821;
26 Lawrence, 539 U.S. 558, 578-79 (2003). In contrast,
27 Defendants cite older Ninth Circuit precedent,
28
14
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1 particularly Holmes v. California Army National Guard,

2 124 F.3d 1126, 1132-36 (9th Cir. 1997) and Philips v.
3 Perry, 106 F.3d 1420, 1425-29 (9th Cir. 1997), in which
4 the Ninth Circuit upheld DADT.
5
6 1. Witt's heightened scrutiny
7 In its 2008 Witt decision, the Ninth Circuit adopted
8 a "heightened scrutiny" standard to assess whether DADT
9 comports with the substantive due process guarantee of
10 the U.S. Constitution. Witt, 527 F.3d at 821. The Ninth
11 Circuit adopted the following test:
12 when the government attempts to intrude
upon the personal and private lives of
13 homosexuals, in a manner that implicates
the rights identified in Lawrence, the
14 government must advance an important
governmental interest, the intrusion must
15 significantly further that interest, and
the intrusion must be necessary to
16 further that interest. In other words,
for the third factor, a less intrusive
17 means must be unlikely to achieve
substantially the government's interest.
18
19
Witt, 527 F.3d at 819.
20
21
In the same discussion, the Ninth Circuit also
22
explicitly "h[e]ld that this heightened scrutiny analysis
23
is as-applied rather than facial, . . ." and the Ninth
24
Circuit emphasized "we must determine not whether DADT
25
has some hypothetical, posthoc rationalization in
26
general, but whether a justification exists for the
27
application of the policy as applied to Major Witt." The
28
15
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1 as-applied inquiry "is necessary to give meaning to the

2 Supreme Court's conclusion that 'liberty gives
3 substantial protection to adult persons in deciding how
4 to conduct their private lives in matters pertaining to
5 sex.'" Witt, 527 F.3d at 819.
6
7 The parties dispute the effect and application of
8 Witt here. Defendants claim it limits all substantive
9 due process challenges to DADT to as-applied rather than
10 facial attacks. (Defs.' Supp'l Br. 7.) Plaintiff argues
11 it has the right to choose its own litigation strategy,
12 including a facial challenge, and points out the
13 congruity between association standing and a facial
14 challenge. (Pl.'s Supp'l Br. 5.)
15
16 Witt expresses a strong preference for as-applied
17 challenges and clearly limits the heightened scrutiny
18 standard it announces to such challenges. For example,
19 the decision stresses consideration of "the facts of the
20 individual case," an inquiry impossible in a facial
21 challenge. Witt, 527 F.3d at 819; (see Defs.' Supp'l Br.
22 8.) Nevertheless, Defendants do not direct the Court to
23 language forbidding facial challenges or forbidding
24 associations from challenging DADT.
25
26 Accordingly, nothing in Witt bars Plaintiff from
27 asserting a facial challenge to DADT, although in doing
28
16
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1 so it will not be able to rely upon Witt's heightened

2 scrutiny standard as the Ninth Circuit limited this
3 standard to as-applied challenges. (Contra Pl.'s Supp'l
4 Br. 3.)
5
6 2. Lawrence's impact on Holmes
7 As Witt does not compel the Court to deny the Motion,
8 we turn next to whether Lawrence or Holmes5 provides
9 guidance here.
10
11 According to Defendants, Lawrence is not pertinent,
12 because it discusses application of a criminal statute in
13 a civilian setting, and is irrelevant to the validity of
14 Holmes. (See Reply 5 citing Galbraith v. County of Santa
15 Clara, 307 F.3d 1119, 1123 (9th Cir. 2002) (discussing
16 the application of Supreme Court opinions to Ninth
17 Circuit precedent) and Miller v. Gammie, 335 F.3d 889,
18 900 (9th Cir. 2003) (en banc) (same).)
19
20 Defendants rely on Holmes in vain. The Holmes Court
21 relied on Bowers v. Hardwick, 478 U.S. 186 (1986), which
22
23
24 5
Holmes upheld DADT in the face of a substantive due
25 process challenge. See Holmes, 124 F.3d at 1136. (Mot.
19.) Defendants also rely on Philips for the proposition
26 that DADT is not based on mere negative attitudes and
that it responds to the unique needs of military life.
27 However, Philips discusses equal protection concerns, not
substantive due process. (See Mot. 19; Reply 5);
28 Philips, 106 F.3d at 1429.
17
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1 Lawrence overturned. Holmes, 124 F.3d at 1136;6

2 Lawrence, 539 U.S. at 578 ("Bowers was not correct when
3 it was decided, and it is not correct today. It ought
4 not to remain binding precedent. Bowers v. Hardwick
5 should be and now is overruled"). Lawrence unequivocally
6 overruled Bowers; therefore, it removed the foundation on
7 which Holmes rested. (Opp'n 5 citing Lawrence, 539 U.S.
8 at 578.)
9
10 As the foundation on which Holmes rested was
11 dissolved by Lawrence, the Court cannot conclude
12 Plaintiff's substantive due process claim lacks merit.
13 The Court DENIES the Motion as to the substantive due
14 process claim.
15
16 C. Equal Protection
17 Plaintiff claims DADT violates the Fifth Amendment's
18 equal protection clause because (1) it treats homosexual
19 service persons differently than similarly-situated
20 heterosexual persons based on impermissible
21 considerations and because (2) homosexuals either are
22
6
23 At page 1136, the Holmes court relies on
Schowengerdt v. United States, 944 F.2d 483, 490 (9th
24 Cir. 1991) where the court found plaintiff's "substantive
due process claim with respect to the old" pre-DADT
25 policy was "foreclosed by Bowers v. Hardwick, 478 U.S.
186. . .". Holmes also relies on High Tech Gays v.
26 Defense Industrial Security Clearance Office, 895 F.2d
563 (9th Cir. 1990) which in turn relied on Bowers for
27 the proposition that persons do not have a fundamental
right to engage in intimate homosexual conduct. High
28 Tech Gays, 895 F.2d at 571.
18
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1 part of a suspect class or exercise a fundamental right.

2 (Opp'n 16.)
3
4 Defendants assert Plaintiff does not state an equal
5 protection claim, as homosexuals are not a suspect or a
6 quasi-suspect class according to Ninth Circuit precedent
7 undisturbed by Lawrence, which was not decided on equal
8 protection grounds. (See Mot. 20); Witt, 527 F.3d 806
9 (discussing Lawrence). The Ninth Circuit upheld DADT
10 under rational basis review in Holmes, 124 F.3d at 1132
11 ("homosexuals do not constitute a suspect or quasi-
12 suspect class"), Philips, 106 F.3d at 1425-29, and High
13 Tech Gays v. Defense Industrial Security Clearance
14 Office, 895 F.2d 563, 571, 576-78 (9th Cir. 1990)
15 (relying on Bowers for proposition "homosexual activity
16 is not a fundamental right" and "homosexuals cannot
17 constitute a suspect or quasi-suspect class").
18
19 Plaintiff offers three reasons why the Court should
20 depart from this precedent. Plaintiff first asserts
21 Lawrence "established a fundamental right to engage in
22 intimate, consensual physical acts and relationships with
23 persons of the same gender." (Opp'n 17.) Witt
24 foreclosed this interpretation, by finding Lawrence did
25 not discuss equal protection and did not disturb
26 Philips's holding that DADT complies with the
27
28
19
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1 Constitution's guarantee of equal protection. See Witt,

2 527 F.3d at 821.
3
4 Second, Plaintiff relies on Karouni v. Gonzales, 399
5 F.3d 1163 (9th Cir. 2005), in which the Ninth Circuit
6 considered the asylum claim of a homosexual Lebanese man.
7 Karouni is distinguishable on its facts as an asylum
8 case.
9
10 Third, Plaintiff asserts it should be permitted to
11 conduct discovery and present evidence at the appropriate
12 stage of the case on this issue. As Plaintiff has not
13 succeeded in stating an equal protection claim under
14 existing law, however, it has not shown how discovery
15 would cure the legal infirmity. Accordingly, the Court
16 GRANTS the Motion as to Plaintiff's equal protection
17 claim.
18
19 D. First Amendment
20 Plaintiff claims DADT violates its members' First
21 Amendment rights because it is "likely to chill the
22 exercise of constitutionally protected speech" and is
23 "overbroad," applying to "every facet" of Plaintiff's
24 members' lives. (Opp'n 19, 21, 22.) Plaintiff
25 challenges two ways Defendants use speech to discharge
26 service members: (1) statements of sexual orientation as
27 admission of propensity to engage in "homosexual acts";
28
20
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1 (2) statements of homosexual orientation not used as

2 admissions.
3
4 1. Statements of homosexual orientation as
5 admission of propensity to engage in
6 "homosexual acts"
7 The Ninth Circuit has upheld Defendants' use of a
8 service member's statement he is homosexual as an
9 admission of his likelihood to engage in "homosexual
10 acts." (Mot. 21-22 citing Holmes, 124 F.3d at 1136 and
11 Philips, 106 F.3d at 1430; Reply 14.)7 Holmes found this
12 use of homosexual persons' statements did not implicate
13 the First Amendment while the Philips court did not reach
14 the issue. Holmes, 124 F.3d at 1136 ("because
15 [plaintiffs] were discharged for their conduct and not
16 for speech, the First Amendment is not implicated");
17 Philips 106 F.3d at 1430 (approving "the district court's
18 restraint in declining unnecessarily to reach" the First
19 Amendment issue). While the Court cannot rely on Holmes
20 for its holding rested on Bowers, Lawrence did not
21 disturb Holmes' holdings about the use of speech as
22 admissions. Instead, the proposition that it is
23 permissible to use protected speech as an admission in
24 criminal prosecutions remains good law; according to
25 Defendants, this principle extends to non-criminal
26 discharge proceedings. (Mot. 22-23 citing Wisconsin v.
27
7
28 Witt did not address a First Amendment claim.
21
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1 Mitchell, 508 U.S. 476, 489 (1993) and Wayte v. United

2 States, 470 U.S. 598 (1985).)
3
4 In Wayte, the Supreme Court upheld the government's
5 use of a young man's letters addressed to the government,
6 in which he stated he had not registered for military
7 service and had no intention to do so, to prosecute him
8 for nonregistration for military service. 470 U.S. at
9 598-601, 614. The Court found his exercise of his First
10 Amendment rights did not confer immunity from
11 prosecution. Id. at 614.
12
13 Accordingly, Wayte permits Defendants to use service
14 members' statements they are homosexual as admission of
15 their propensity to engage in "homosexual acts."
16
17 Plaintiff's contention DADT is overbroad and over-
18 inclusive, regulating even private speech, is unavailing:
19 private speech can be employed as an admission. (See
20 Opp'n 21-22.) So long it is constitutional for
21 Defendants to regulate "homosexual acts" that take place
22 anywhere through DADT, it is constitutional for
23 Defendants to use admission of homosexual orientation as
24 showing a likelihood to engage in "homosexual acts." The
25 Court GRANTS the Motion to the extent Plaintiff's FAC
26 seeks to mount a First Amendment challenge to DADT's use
27 of certain statements as admissions.
28
22
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1 2. Other uses of statements

2 Plaintiff claims the First Amendment bars Defendants
3 from discharging service members for speech alone. In
4 other words, Plaintiff asserts Defendants cannot lawfully
5 use service members' statements they are homosexual for
6 uses other than showing a tendency to engage in
7 "homosexual acts." The Holmes and Philips courts did not
8 rule on this issue. (Opp'n 21;) Holmes, 124 F.3d at 1136
9 ("because [plaintiffs] were discharged for their conduct
10 and not for speech, the First Amendment is not
11 implicated"); Philips, 106 F.3d at 1430 (plaintiff "was
12 discharged because . . . he had engaged in homosexual
13 acts. . . [his] statements were used as evidence, not the
14 reason for discharge"; approving "the district court's
15 restraint in declining unnecessarily to reach" the First
16 Amendment issue). Discharge on the basis of statements
17 not used as admissions of a propensity to engage in
18 "homosexual acts" would appear to be discharge on the
19 basis of speech rather than conduct, an impermissible
20 basis. (See Opp'n 25 citing Holmes, 124 F.3d at 1138
21 (Reinhardt, J., dissenting).)
22
23 This Court cannot determine from the face of the FAC
24 whether Nicholson was, or Doe could yet be, discharged
25 based on statements alone. The FAC does not allege
26 Nicholson or Doe was discharged, or is subject to
27 discharge, merely for a self-identifying statement
28
23
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1 regarding his homosexuality. Nevertheless, construing

2 the facts in favor of the non-moving party, the Court
3 cannot conclude Plaintiff will not be able to show these
4 facts. Accordingly, the Court DENIES the Motion insofar
5 as Plaintiff founds its FAC on service members'
6 statements alone.
7
8 IV. CONCLUSION
9 For the reasons above, the Court DENIES the Motion
10 insofar as it attacks Plaintiff's standing to bring suit;
11 DENIES the Motion as to Plaintiff's substantive due
12 process claim; GRANTS the Motion as to Plaintiff's equal
13 protection claim; and GRANTS IN PART and DENIES IN PART
14 the Motion as to Plaintiff's First Amendment claim.
15
16
17
18
19 Dated: June 9, 2009
VIRGINIA A. PHILLIPS
20 United States District Judge
21
22
23
24
25
26
27
28
24
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PRIORITY SEND
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. CV 04-8425-VAP (Ex) Date: July 24, 2009
Title: LOG CABIN REPUBLICANS -v- UNITED STATES OF AMERICA, et al.

================================================================
PRESENT: HONORABLE VIRGINIA A. PHILLIPS, U.S. DISTRICT JUDGE
Marva Dillard None Present

Courtroom Deputy Court Reporter
ATTORNEYS PRESENT FOR ATTORNEYS PRESENT FOR

PLAINTIFFS: DEFENDANTS:
None None
PROCEEDINGS: MINUTE ORDER DENYING DEFENDANTS' REQUEST

REGARDING DISCOVERY (IN CHAMBERS)
The Court has received and reviewed the parties' Joint 26(f) Report ("Report"), submitted in
anticipation of the Scheduling Conference conducted on July 6, 2009. In it, Defendants United
States of America and Secretary of Defense Robert M. Gates ("Defendants") contend they should
be exempt from certain provisions of Rule 26 of the Federal Rules of Civil Procedure as Plaintiff
Log Cabin Republican ("Plaintiff") brings facial, rather than as-applied, substantive due process
and First Amendment challenges to 10 U.S.C. section 654, the "Don't Ask Don't Tell" ("DADT")
policy. Having considered the Report and the arguments advanced at the Scheduling Conference,
the Court DENIES Defendants' request and issues the attached Civil Trial Scheduling Order.
Neither party has been able to cite authority directly addressing the propriety of exempting a
defendant from discovery where a facial substantive due process or First Amendment challenge
has been brought. According to Defendants, who urge a departure from the right to discovery set
forth in the Federal Rules, rational basis review under the Equal Protection Clause is a deferential
MINUTES FORM 11 Initials of Deputy Clerk ___md____

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standard of review, under which the Court is not to second-guess Congressional choices. The
cases Defendants cite, however, neither address discovery nor the constitutional claims now
before the Court; the Court has dismissed Plaintiff's Equal Protection Claim on Defendants' motion.
(See Report 2-3 citing FCC v. Beach Communications, 508 U.S. at 313, 315 (equal protection
challenge to cable regulations); Heller v. Doe, 509 U.S. 312, 320 (1993) (equal protection
challenge to law regarding commitment of mentally retarded persons); Western and Southern Life
Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 671-72 (1981) (equal protection
challenge to taxation of insurance companies); Vance v. Bradley, 440 U.S. 93, 111 (1979) (equal
protection challenge to Foreign Service mandatory retirement age); Lenhahausen v. Lake Shore
Auto Parts Co., 401 U.S. 356, 366 (1973) (equal protection challenge to taxation of corporations
versus natural persons); U.S. v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996) (equal protection
challenge to disparity in sentencing guidelines relevant to "cocaine" and "cocaine base");
Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989) (equal protection challenge to
Sunday closing law).)
Defendants urge the Court to find "a determination made in the context of equal protection"
"applies generally to both equal protection and substantive due process." (Report 4 (discussing
Philips v. Perry, 106 F.3d 1420, 1429 (9th Cir. 1997) (upholding predecessor to DADT policy on
equal protection grounds).) Lawrence v. Texas does not support this contention. In Lawrence, the
Supreme Court granted certiorari as to both substantive due process and equal protection
challenges to Texas's sodomy law but granted relief pursuant only to petitioners' substantive due
process claim, acknowledging the equal protection claim as a "tenable" "alternative argument."
539 U.S. at 574. Had a finding in one sphere mandated relief in the other, Lawrence would have
so stated. Accordingly, the Court does not find Perry's equal protection holding forecloses relief, or
discovery, for Plaintiff's substantive due process claim.
Plaintiff cites the holding of U.S. v. Carolene Products, 304 U.S. 144 (1938) that "a statute
predicated upon the existence of a particular state of facts may be challenged upon showing to the
court that those facts have ceased to exist." Id. at 153 citing Chastleton Corp. v. Sinclair, 264 U.S.
543 (1924) (concerning challenge to a rent control law enacted in response to a housing crisis
when the crisis ceased to exist).) Plaintiff argues it needs to, and is entitled to, conduct discovery
in order to mount the sort of challenge described in Carolene Products, i.e., that the conditions
described at 10 U.S.C. section 654(a) have "ceased to exist." See Carolene, 304 U.S. at 153;
(Order Denying Part and Granting in Part Motion to Dismiss 6-7 (quoting Congress' factual
findings).)
Although the other, out of circuit, authorities Plaintiff relies on, including Dias v. City and
County of Denver, 567 F.3d 1169 (10th Cir. 2009), are not particularly persuasive here, the Court

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LOG CABIN REPUBLICANS v UNITED STATES OF AMERICA
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finds Plaintiff is entitled to conduct discovery in this case to develop the basis for its facial
challenge.
IT IS SO ORDERED.

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11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP
non-profit corporation, ) (Ex)
12 )
Plaintiff, ) [Motion filed on March 29,
13 ) 2010]
v. )
14 ) ORDER DENYING IN PART MOTION
UNITED STATES OF AMERICA ) FOR SUMMARY JUDGMENT
15 and DONALD H. RUMSFELD, )
)
17 Defendants. )
________________________
18
19 Log Cabin Republicans, ("Plaintiff" or "Plaintiff
20 association"), a nonprofit corporation whose membership
21 includes current, retired, and former homosexual members
22 of the U.S. armed forces, challenges as "restrictive,
23 punitive, . . . discriminatory," and unconstitutional the
24 "Don't Ask Don't Tell" policy ("DADT Policy") of
25 Defendants United States of America and Robert M. Gates
26 ("Defendants"), including both the statute codified at 10
27 U.S.C. section 654 and the implementing instructions
28 appearing at Department of Defense Instructions("DoDI" or
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1 "implementing instructions") 1332.14, 1332.30, and

2 1304.26. Defendants now move for entry of summary
3 judgment.
4
5 I. BACKGROUND
6 A. The DADT Policy
7 The DADT Policy includes both the statutory language
8 appearing at 10 U.S.C. section 654 and the implementing
9 instructions appearing as DoDIs 1332.14, 1332.30, and
10 1304.26. DADT can be triggered by three kinds of
11 "homosexual conduct:" (1) "homosexual acts"; (2)
12 statements that one "is a homosexual"; or (3) marriage
13 to, or an attempt to marry, a person of one’s same
14 biological sex. 10 U.S.C. § 654 (b); DoDI 1332.14 at
15 17–18; 1332.30 at 9–10.
16
17 1. "Homosexual Acts"
18 First, Defendants may "initiate separation
19 proceedings" — i.e., begin the process of removing an
20 active service member from military ranks — if a service
21 member engages in a "homosexual act," defined as "(A) any
22 bodily contact, actively undertaken or passively
23 permitted, between members of the same sex for the
24 purpose of satisfying sexual desires; and (B) any bodily
25 contact which a reasonable person would understand to
26 demonstrate a propensity or intent to engage in an act
27
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1 described in subparagraph (A)." 10 U.S.C. § 654 (b)(1),

2 (f)(3).
3
4 2. Statements About One's Homosexuality
5 Second, Defendants may initiate separation if a
6 service member makes a statement "he or she is a
7 homosexual or bisexual, or words to that effect." 10
8 U.S.C. § 654(b)(2). These words create a presumption the
9 service member is a "person who engages in, attempts to
10 engage in, has a propensity to engage in, or intends to
11 engage in homosexual acts." 10 U.S.C. § 654(b)(2). A
12 propensity is "more than an abstract preference or desire
13 to engage in homosexual acts; it indicates a likelihood
14 that a person engages or will engage in homosexual acts."
15 DoDI 1332.14 at 18.
16
17 3. Marriage or Attempted Marriage to a Person
18 of the Same Sex
19 The third route to separation under DADT, marriage or
20 attempted marriage to a person of the same sex, is self-
21 explanatory.
22
23 4. Discharge
24 Once Defendants find a service member has engaged in
25 "homosexual conduct," as defined above, Defendants will
26 discharge him or her unless the service member can
27 demonstrate that, inter alia, such acts are not his or
28
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1 her usual or customary behavior and that he or she has no

2 propensity to engage in "homosexual acts." 10 U.S.C. §
3 654(b)(1); DoDI 1332.14 at 18.
4
5 B. Plaintiff and Its Members
6 According to the Complaint, Plaintiff Log Cabin
7 Republicans ("Plaintiff") is a nonprofit corporation
8 organized under the laws of the District of Columbia, is
9 associated with the Republican Party, and is dedicated to
10 the interests of the gay and lesbian community.1
11
12 John Alexander Nicholson is a member of Plaintiff
13 organization. Mr. Nicholson enlisted in the United
14 States Army in 2001; the Army discharged him one year
15 later pursuant to the DADT Policy. (Declaration of John
16 Alexander Nicholson ("Nicholson Decl.") ¶¶ 3, 5–6.) Mr.
17 Nicholson signed up to be included in Plaintiff's
18 database in April of 2006. (Stmt. of Genuine Issues
19 ("SGI") at 6:5–20.) In 2006, Plaintiff's Georgia chapter
20 awarded Mr. Nicholson honorary membership.2 (Id.) Mr.
21
1
22 Although neither Defendants in their Motion nor
Plaintiff in its Opposition point to any evidence
23 concerning the corporate form of Plaintiff, the nature of
Plaintiff organization does not appear to be in dispute.
24 2
Although Defendants argue "the record contains no
25 evidence that the national board of directors ever
granted 'honorary membership' to Mr. Nicholson,"
26 Plaintiff has submitted evidence, in the form of the
Declaration of Jamie Ensley, that the Georgia Chapter of
27 Plaintiff organization granted Mr. Nicholson honorary
membership. (See Decl. of Jamie Ensley ("Ensley Decl.")
28 (continued...)
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1 Nicholson has attended several of Plaintiff's national

2 conventions, (id.), and addressed Plaintiff's national
3 convention in 2006. (SGI at 5:11–6:4.)
4
5 John Doe is also a member of Plaintiff organization.
6 (Decl. of John Doe ("Doe Decl.") ¶ 2.) He joined
7 Plaintiff at some time before October 12, 2004. (Decl.
8 of C. Martin Meekins ("Meekins Decl.") ¶ 3.) John Doe is
9 an officer in the United States Army Reserves who
10 recently completed a tour of duty in Iraq. (SGI at
11 7:5–8:10; Doe Decl. ¶ 4.) Lt. Col. Doe is gay and wishes
12 to continue his service in the United States Army. (Doe
13 Decl. ¶¶ 2, 6.) He believes that identifying himself in
14 this action would subject him to investigation and
15 discharge under the DADT Policy. (Doe Decl. ¶ 8.)
16
17 C. Procedural History
18 Plaintiff filed its Complaint on October 12, 2004.
19 On December 13, 2004, Defendants moved to dismiss the
20 Complaint, alleging, inter alia, that Plaintiff lacked
21 standing. The Honorable George P. Schiavelli granted the
22 motion to dismiss the Complaint with leave to amend on
23 March 21, 2006.
24
25
26
27 2
(...continued)
28 ¶ 4.)
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1 On April 28, 2006, Plaintiff filed timely its Amended

2 Complaint, attaching the declaration of Mr. Nicholson.
3 According to the Amended Complaint, the DADT Policy
4 violates the First and Fifth Amendments to the U.S.
5 Constitution by violating guarantees to: (1) substantive
6 due process; (2) equal protection; and (3) freedom of
7 speech. On June 11, 2007, Plaintiff filed the
8 declaration of Lt. Col. Doe, a current member of
9 Plaintiff organization, a homosexual, and a current U.S.
10 Army reservist on active duty.
11
12 On June 12, 2006, Defendants moved to dismiss the
13 Amended Complaint. On May 23, 2008, Judge Schiavelli
14 entered an order staying this action in light of the
15 Ninth Circuit's May 21, 2008 decision in Witt v. Dep't of
16 the Air Force, 527 F.3d 806 (9th Cir. 2008). After the
17 case was transferred to this Court in late 2008, the
18 Court heard the motion to dismiss, and denied it on June
19 9, 2009. On November 24, 2009, the Court denied a motion
20 by Defendants to certify its June 9, 2009 Order for
21 interlocutory appeal.
22
23 On March 29, 2010, Defendants filed this Motion for
24 Summary Judgment. Plaintiff's Opposition and Defendants'
25 Reply were filed timely. On April 21, 2010, the Court
26 provided the parties with its tentative ruling relating
27 to standing. On April 22, 2010, Plaintiff filed a
28
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1 supplemental memorandum of points and authorities in

2 support of its Opposition, and on April 23, 2010,
3 Defendants filed a response to Plaintiff's supplemental
4 brief. On April 26, 2010, Plaintiff submitted the
5 Meekins Declaration in support of its Opposition. The
6 Court held a hearing on the Motion on April 26, 2010, and
7 granted the parties leave to submit further supplemental
8 briefing concerning standing; both sides timely filed
9 additional briefs on May 3, 2010.
10
11 D. Evidentiary Objections
12 The only evidentiary objection the Court need address
13 in order to resolve the threshold issue of standing is
14 Defendants’ challenge to consideration of the Meekins
15 declaration.
16
17 Defendants argue that the Court should strike the
18 Meekins Declaration because Plaintiff failed to disclose
19 Mr. Meekins as a witness during discovery. Defendants
20 are correct that where a party fails to disclose the
21 identity of a witness required by either Rule 26(a) or
22 otherwise requested during discovery without substantial
23 justification, the party may not later rely on evidence
24 from that witness. See Wong v. Regents of Univ. of Cal.,
25 410 F.3d 1052, 1062 (9th Cir. 2005); Fed. R. Civ. P.
26 37(c)(1).
27
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1 Defendants' challenge to the declaration fails for

2 two reasons, however. First, Rule 26(a) only requires a
3 party to disclose the identity of persons "the disclosing
4 party may use to support its claims or defenses." Fed.
5 R. Civ. P. 26(a)(1)(A)(i). The Meekins Declaration is
6 offered solely to rebut Defendants' challenge to
7 Plaintiff's standing to bring this lawsuit, by
8 establishing Lt. Col. Doe's membership in Plaintiff
9 organization at the time the action commenced. Mr.
10 Meekins does not offer any testimony relating to the
11 merits of Plaintiff's claims for relief. Accordingly,
12 disclosure of Mr. Meekins' identity was not required by
13 Rule 26(a). Defendants have pointed to no written
14 discovery request they propounded upon Plaintiff that
15 would have called for identification of Mr. Meekins.
16 Plaintiff thus was not obligated to disclose Mr. Meekins'
17 identity during discovery.
18
19 Furthermore, assuming disclosure was required either
20 by Rule 26(a) or an as-yet unidentified discovery
21 request, substantial justification exists for Plaintiff's
22 failure to disclose Mr. Meekins' identity during
23 discovery. Defendants have known that Plaintiff sought
24 to use Lt. Col. Doe's membership as the basis of its
25 claim to standing for almost three years, yet never
26 challenged the timing of his membership in Plaintiff
27
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1 organization.3 The ambiguity that caused the Court to

2 question when Lt. Col. Doe became a member of Plaintiff
3 organization appears clearly on the face of the Doe
4 Declaration, which has been in Defendants' possession
5 since June 11, 2007. Based on Defendants' silence in the
6 face of the Doe Declaration, Plaintiff reasonably may
7 have believed that the timing of Lt. Col. Doe's
8 membership was not in dispute. Plaintiff thus would have
9 had no reason to seek out additional evidence of the date
10 on which Lt. Col. Doe joined Plaintiff organization, let
11 alone disclose such evidence.
12
13 For the foregoing reasons, the Court DENIES
14 Defendants' request to strike the Meekins Declaration.
15
17 A motion for summary judgment shall be granted when
18 there is no genuine issue as to any material fact and the
19 moving party is entitled to judgment as a matter of law.
20 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
21 477 U.S. 242, 247-48 (1986). The moving party must show
22 that "under the governing law, there can be but one
23 reasonable conclusion as to the verdict." Anderson, 477
24 U.S. at 250.
25
26 3
Defendants did not raise this issue in their Motion;
27 it was raised by the Court sua sponte in its tentative
ruling distributed to the parties before the April 26,
28 2010 hearing.
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1
2 Generally, the burden is on the moving party to
3 demonstrate that it is entitled to summary judgment.
4 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998);
5 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707
6 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears
7 the initial burden of identifying the elements of the
8 claim or defense and evidence that it believes
9 demonstrates the absence of an issue of material fact.
10 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
11
12 Where the non-moving party has the burden at trial,
13 however, the moving party need not produce evidence
14 negating or disproving every essential element of the
15 non-moving party’s case. Celotex, 477 U.S. at 325.
16 Instead, the moving party’s burden is met by pointing out
17 that there is an absence of evidence supporting the non-
18 moving party’s case. Id. The burden then shifts to the
19 non-moving party to show that there is a genuine issue of
20 material fact that must be resolved at trial. Fed. R.
21 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477
22 U.S. at 256. The non-moving party must make an
23 affirmative showing on all matters placed in issue by the
24 motion as to which it has the burden of proof at trial.
25 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252. See
26 also William W. Schwarzer, A. Wallace Tashima & James M.
27 Wagstaffe, Federal Civil Procedure Before Trial § 14:144.
28
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1 A defendant has the burden of proof at trial with respect

2 to any affirmative defense. Payan v. Aramark Mgmt.
3 Servs. Ltd. P'ship, 495 F.3d 1119, 1122 (9th Cir. 2007).
4
5 A genuine issue of material fact will exist "if the
6 evidence is such that a reasonable jury could return a
7 verdict for the non-moving party." Anderson, 477 U.S. at
8 248. In ruling on a motion for summary judgment, the
9 Court construes the evidence in the light most favorable
10 to the non-moving party. Barlow v. Ground, 943 F.2d
11 1132, 1135 (9th Cir. 1991); T.W. Electrical Serv. Inc. v.
12 Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630-31
13 (9th Cir. 1987).
14
15 III. DISCUSSION
16 A. Standing
17 Defendants argue they are entitled to summary
18 judgment because Plaintiff lacks standing to bring this
19 action.
20
21 "To satisfy Article III's standing requirement,
22 [plaintiffs] must demonstrate: (1) they suffered or will
23 suffer an 'injury in fact' that is concrete,
24 particularized, and actual or imminent; (2) the injury is
25 fairly traceable to [defendant's] challenged action; and
26 (3) the injury is likely, not merely speculative, and
27 will be redressed by a favorable decision." Biodiversity
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1 Legal Found. v. Badgley, 309 F.3d 1166, 1171 (9th Cir.

2 2002); see also Lujan v. Defenders of Wildlife, 504 U.S.
3 555, 560–61 (1992). Plaintiff, as the party invoking
4 federal jurisdiction, bears the burden of establishing
5 its standing. See Lujan, 504 U.S. at 561; Chandler v.
6 State Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir.
7 2010).
8
9 An association has standing to sue on behalf of its
10 members when "(a) its members would otherwise have
11 standing to sue in their own right; (b) the interests it
12 seeks to protect are germane to the organization's
13 purpose; and (c) neither the claim asserted nor the
14 relief requested requires the participation of individual
15 members in the lawsuit." Hunt v. Wash. State Apple
16 Adver. Comm'n, 432 U.S. 333, 343 (1977).
17
18 Plaintiff has identified two of its members who, it
19 argues, have standing to sue in their own right and thus
20 confer standing on it: John Doe and John Alexander
21 Nicholson. Defendants do not dispute the second and
22 third prongs of Hunt's associational standing elements as
23 to Lt. Col. Doe and Mr. Nicholson, nor do they dispute
24 that Mr. Nicholson has standing to sue in his own right.
25 Defendants argue, instead, that Lt. Col. Doe and Mr.
26 Nicholson are not bona fide members of Plaintiff.
27 Defendants further argue that Lt. Col. Doe lacks standing
28
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1 to sue in his own right because he has not yet been

2 discharged from the military, and thus any harm to him
3 from the DADT Policy is speculative. Defendants also
4 argue that even if Lt. Col. Doe and Mr. Nicholson were
5 bona fide members with standing to sue in their own
6 right, they were not members at the time this action
7 commenced, and the Court therefore lacks subject matter
8 jurisdiction. Finally, Defendants argue that Plaintiff
9 cannot proceed without disclosing Lt. Col. Doe's
10 identity.
11
12 At the threshold, the Court must determine the date
13 on which Plaintiff's standing should be evaluated.
14 Defendants argue the Court should examine Plaintiff's
15 standing as of the date the action was initiated, i.e.,
16 the date the original Complaint was filed — October 12,
17 2004. Plaintiff, on the other hand, contends the Court
18 should inquire whether standing existed as of the date
19 the First Amended Complaint was filed, April 28, 2006.
20
21 As a general matter, "[s]tanding is determined at the
22 time of the lawsuit's commencement, and [the Court] must
23 consider the facts as they existed at that time the
24 complaint was filed." Skaff v. Meridien N. Am. Beverly
25 Hills, LLC, 506 F.3d 832, 850 (9th Cir. 2007) (citing
26 Lujan, 504 U.S. at 569 n. 4); see also Friends of the
27 Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 180
28
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1 (2000) ("[W]e have an obligation to assure ourselves that

2 [plaintiff] had Article III standing at the outset of the
3 litigation.").
4
5 Plaintiff urges that this case falls within an
6 exception to the general rule. In his March 21, 2006
7 Order, Judge Schiavelli dismissed Plaintiff's original
8 Complaint and granted Plaintiff leave to file a First
9 Amended Complaint. Relying on Loux v. Rhay, 375 F.2d 55,
10 57 (9th Cir. 1967), Plaintiff argues that "[t]he
11 dismissal of Log Cabin's original complaint and the
12 filing of the first amended complaint rendered the
13 original complaint of no legal effect and obsolete."
14 (Pl.'s Apr. 22, 2010 Mem. of P. & A. at 1:19–20.) In
15 support of this argument, Plaintiff cites County of
16 Riverside v. McLaughlin, 500 U.S. 44 (1991). (Id. at
17 2:14–3:2.)
18
19 In McLaughlin, the class members claimed that the
20 County of Riverside had violated their Constitutional
21 rights when it failed to provide persons subject to
22 warrantless arrest with timely probable cause
23 determinations. McLauglin, 500 U.S. at 47. The original
24 complaint in McLaughlin, filed in August 1987, named a
25 single plaintiff. Id. at 48. The second amended
26 complaint, filed in July 1988, named three additional
27 plaintiffs. Id. at 48–49. In response to the
28
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1 defendants' argument challenging the standing of the

2 named plaintiffs, the Court examined the facts relating
3 to standing as set forth in the second amended complaint,
4 not the original complaint. Id. at 50–52.
5
6 Defendants attempt to avoid the effect of McLaughlin
7 by arguing that the Supreme Court analyzed standing as of
8 the date the second amended complaint was filed because
9 new named plaintiffs were added in the second amended
10 complaint, and the claims of these new plaintiffs were
11 not included in the case before that date. This is
12 unpersuasive, however. The procedural posture of this
13 case closely resembles that before the Court in
14 McLaughlin. Just as a class must identify a named
15 plaintiff with standing, so too must an association
16 seeking to assert claims of its members identify an
17 individual member with standing. Although it is true
18 that there has been but one named plaintiff here for the
19 duration of the action, an association that newly
20 identifies a member for standing purposes is analogous to
21 a class that newly identifies a class member with
22 standing. Accordingly, the analysis of McLaughlin
23 applies here, and the critical date for standing is the
24 date the First Amended Complaint was filed — April 28,
25 2006.
26
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1 Turning to the specific standing arguments raised by

2 the parties with respect to Lt. Col. Doe and Mr.
3 Nicholson, the Court finds each of these challenges, too,
4 lacks merit.
5
6 1. John Doe
7 Defendants raise three principal objections to
8 Plaintiff's use of Lt. Col. Doe to confer standing: (1)
9 he does not have standing to sue in his own right; (2) he
10 was not a member of Plaintiff at the time the original
11 Complaint was filed; and (3) Plaintiff may not rely on
12 John Doe for standing without identifying him by name.
13 The Court addresses each argument in turn.
14
15 a. Imminence of Harm
16 Defendants contend that because Lt. Col. Doe has not
17 been discharged from the military yet, any harm to him is
18 too speculative to constitute the actual or imminent harm
19 required for standing. (Mot. at 11:8–12:17.)
20
21 The Supreme Court has rejected the argument that a
22 plaintiff lacks standing to challenge the
23 constitutionality of a statute merely because the statute
24 has not been enforced against him yet. Instead, the
25 Court has long held that so long as there is a reasonable
26 threat of enforcement, "it is not necessary that
27 petitioner first expose himself to actual arrest or
28
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1 prosecution to be entitled to challenge a statute that he

2 claims deters the exercise of his constitutional rights."
3 Steffel v. Thompson, 415 U.S. 452, 459 (1974); see also,
4 e.g., MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
5 128–29 (2007) ("[W]here threatened action by government
6 is concerned, we do not require a plaintiff to expose
7 himself to liability before bringing suit to challenge
8 the basis for the threat — for example the
9 constitutionality of a law threatened to be enforced.");
10 Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc.,
11 477 U.S. 619, 626 n. 1 (1986).
12
13 Here, the DADT Policy on its face shows that there is
14 a reasonable threat that it will be enforced against Lt.
15 Col. Doe if the military learns his identity. The
16 language of the DADT Policy is mandatory, see 10 U.S.C. §
17 654(b)(2) ("A member of the armed forces shall be
18 separated from the armed forces . . . if . . . the member
19 has stated that he or she is a homosexual . . . .")
20 (emphasis added), and does not leave the armed forces any
21 discretion about enforcing the policy where a
22 servicemember is unable to rebut a finding that he or she
23 is "a person who engages in, attempts to engage in, has a
24 propensity to engage in, or intends to engage in
25 homosexual acts." Id. Lt. Col. Doe has stated that he
26 is homosexual (see Doe Decl. ¶ 2); the mandatory nature
27 of the DADT Policy requires it be applied to him if he is
28
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1 identified. Furthermore, Defendants do not dispute that

2 many service members have been discharged previously
3 under the DADT Policy, or that the DADT Policy will
4 continue to be applied to persons who admit to being
5 homosexuals.
6
7 Indeed, Defendants have not argued that it is even
8 within their discretion to decline to initiate separation
9 proceedings against Lt. Col. Doe if he were identified.
10 In fact, they are unwilling to stipulate not to initiate
11 such proceedings against him were his identity revealed
12 for purposes of this litigation. Defendants have offered
13 no evidence suggesting that the DADT Policy will not be
14 enforced against Lt. Col. Doe.
15
16 Defendants' legal authorities do not establish that
17 no imminent threat of harm to Lt. Col. Doe exists. In
18 support of their argument, Defendants rely on City of Los
19 Angeles v. Lyons, 461 U.S. 95 (1983), Nat'l Treasury
20 Employees Union v. Dep't of the Treasury, 25 F.3d 237
21 (5th Cir. 1994), and Hodgers-Durgin v. de la Viña, 199
22 F.3d 1037 (9th Cir. 1999).
23
24 Lyons is easily distinguishable from the facts here.
25 In Lyons, the Supreme Court held that a plaintiff did not
26 have standing to obtain injunctive relief preventing the
27 Los Angeles Police Department from enforcing an unwritten
28
18
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1 policy that officers employ choke holds to restrain

2 suspects who pose no threat of deadly force to officers.
3 Lyons, 461 U.S. at 98, 111–13. In Lyons, there was
4 substantial uncertainty as to whether or not the
5 plaintiff would engage in future activity sufficient to
6 arouse the suspicions of police officers and if he did,
7 whether or not the police officers would enforce the
8 unwritten alleged choke hold policy. See id. at 105–06.
9 The Court recognized there was nothing about the
10 plaintiff that made it more likely the policy would be
11 applied to him than any other individual. See id. at 111
12 ("[Plaintiff] is no more entitled to an injunction than
13 any other citizen of Los Angeles.")
14
15
16 Here, by contrast, the DADT Policy is non-
17 discretionary and based on a single criterion which Lt.
18 Col. Doe meets. There is no reason to doubt it will be
19 applied to him. His testimony that he is gay certainly
20 suffices to raise a triable issue of material fact as to
21 imminent harm. (See Doe Decl. ¶ 2.)
22
23 National Treasury similarly fails to support
24 Defendants' position. There, the Fifth Circuit found the
25 plaintiff organization lacked standing because the
26 plaintiff had "not even alleged that there is a threat of
27 such an injury to any individual member of the
28
19
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1 association," Nat'l Treasury, 25 F.3d at 242, not because

2 the policy it challenged had not been enforced against
3 any of its members. Here, Plaintiff has identified Lt.
4 Col. Doe as a member to whom a threat exists.
5
6 Finally, Hodgers-Durgin does not support Defendants'
7 position. The named plaintiffs in Hodgers-Durgin sought
8 to enjoin an alleged Border Patrol practice of stopping
9 motorists in violation of the Fourth Amendment. Although
10 Defendants maintain that the Ninth Circuit found the
11 named plaintiffs lacked standing, the Ninth Circuit's
12 holding actually was two-fold: (1) the named plaintiffs
13 sufficiently alleged a "case or controversy" for
14 purposes of Article III standing, but (2) failed to show
15 a likelihood of substantial and immediate irreparable
16 injury for the purposes of obtaining a preliminary
17 injunction. See Hodgers-Durgin, 199 F.3d at 1041–44.
18 The standard for obtaining injunctive relief, of course,
19 is different from the standard for establishing standing,
20 as evidenced by the Ninth Circuit's decision.
21
22 b. When John Doe Became A Member of Plaintiff
23 John Doe began paying membership dues to Plaintiff
24 before the filing of the Original Complaint in 2004.
25 (Meekins Decl. ¶ 4.) Although he apparently took
26 measures to protect against disclosure of his identity —
27 including paying his membership dues through a member of
28
20
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1 Plaintiff's national board rather than directly to the

2 organization, (see id.) — he appears to have become a
3 dues-paying member before the Original Complaint was
4 filed.
5
6 Summary judgment is inappropriate here whether the
7 Court applies April 28, 2006 or October 12, 2004 as the
8 appropriate date for its standing analysis. As discussed
9 above, Plaintiff here must demonstrate it had standing to
10 bring suit as of April 28, 2006, the date the First
11 Amended Complaint was filed. Lt. Col. Doe was
12 indisputably a member of Plaintiff before that date.
13 Even assuming arguendo that Defendants are correct in
14 their assertion that Plaintiff must establish it had
15 standing as of the date the original complaint was filed,
16 however, there is at a minimum a genuine issue of fact as
17 to whether or not Lt. Col. Doe was a member of Plaintiff
18 association on that date. (See id. ¶¶ 3–4.) This
19 genuine issue of fact precludes summary judgment on this
20 basis.4
21
22
23
24
25
4
26 Defendants further appear to argue that Lt. Col. Doe
was not a bona fide member of Plaintiff organization at
27 any time. (See Mot. at 11:6–8.) As discussed above,
however, it is clear that Lt. Col. Doe was a dues-paying
28 member of Plaintiff organization.
21
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1 c. Proceeding Pseudononymously
2 Finally, Defendants argue that Plaintiff should not
3 be allowed to proceed without identifying Lt. Col. Doe by
4 name, and that by allowing them to do so, the Court is
5 departing from its March 21, 2006 ruling. (See Defs.'
6 May 3, 2010 Mem. of P. & A. at 5:11–7:23.) The Court has
7 already held that this case presents the rare set of
8 circumstances in which anonymity is appropriate, however,
9 and declines to revisit this ruling. (See Docket No. 83
10 at 13:13–20.) The rationale for that ruling is only
11 strengthened by Defendants' refusal to stipulate that Lt.
12 Col. Doe would not be subject to separation proceedings
13 if he were identified by name. (Opp'n at 9:3–6.)
14 Defendants cite Judge Schiavelli's March 21, 2006 Order
15 on this issue, but that Order did not foreclose entirely
16 the possibility that Plainiff could proceed without
17 identifying the members on whom it relies for standing.
18 (See Docket No. 24 at 16:1–17:14.) Accordingly, the
19 Court's ruling that Plaintiff may proceed without
20 identifying Lt. Col. Doe by name is not a "departure"
21 from the March 21, 2006 Order.
22
23 2. Terry Nicholson
24 In addition to Lt. Col. Doe, Mr. Nicholson's
25 membership in Plaintiff association provides a basis for
26 the Court to find Plaintiff has standing here.
27
28
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1 In 2006, Plaintiff's Georgia chapter made Mr.

2 Nicholson an honorary member. (Ensley Decl. ¶ 4.)
3 Though Plaintiff does not specify the date in 2006 on
4 which Mr. Nicholson became an honorary member, the
5 parties agree that he signed up to be included in
6 Plaintiff's database in April 2006, (Stmt. of Undisputed
7 Facts ("SUF") ¶ 10; SGI ¶ 10), and Plaintiff's records
8 indicate that Mr. Nicholson has been a member since April
9 28, 2006. (See Decl. of Terry Hamilton ("Hamilton
10 Decl.") ¶¶ 3–5, Ex. A.) Construing these facts in the
11 light most favorable to Plaintiff, the non-moving party,
12 it appears that Mr. Nicholson was an honorary member at
13 the time the First Amended Complaint was filed, the
14 applicable measuring date here.
15
16 Defendants argue that Mr. Nicholson's honorary
17 membership is a nullity because the provision of
18 Plaintiff's bylaws authorizing awards of honorary
19 membership conflict with Plaintiff's articles of
20 incorporation — which provide for a single class of dues-
21 paying members — and thus Plaintiff has no ability to
22 award honorary memberships. Plaintiff maintains that Mr.
23 Nicholson's honorary membership is valid, and even if it
24 were not, sufficient indicia of Mr. Nicholson's
25 membership exist to provide for standing here.
26
27
28
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1 Defendants respond that the line of authority

2 permitting associational standing where sufficient
3 indicia of membership exist is unavailable to Plaintiff,
4 a traditional membership organization, and that in any
5 case, the indicia of Mr. Nicholson's membership are
6 insufficient to confer standing. As the Court finds
7 Defendants have not met their burden of showing that
8 Plaintiff's grant of honorary membership to Mr. Nicholson
9 was invalid, the Court does not reach the question of
10 whether Plaintiff may alternatively obtain standing based
11 on Mr. Nicholson's indicia of membership.
12
13 Defendants' argument that Mr. Nicholson's honorary
14 membership is insufficient to confer standing on
15 Plaintiff fails for two reasons. First, although as a
16 general principle of corporate law5 bylaws that conflict
17 with mandatory provisions of a corporation's articles of
18 incorporation are ultra vires and void, see, e.g.,
19 Paolino v. Mace Sec. Int'l, Inc., 985 A.2d 392, 403 (Del.
20 Ch. 2009), Defendants have not shown that the bylaw at
21 issue actually conflicts with Plaintiff's articles of
22 incorporation. In relevant part, Plaintiff's articles of
23 incorporation provide that "[m]embers of the corporation
24
25 5
Defendants have directed the Court to no authority
26 specifically applying the District of Columbia Nonprofit
Corporation Act, and the Court has found none; Defendants
27 rely solely on Nev. Classified Sch. Employees Ass'n v.
Quaglia, 177 P.3d 509 (Nev. 2008), which appears to have
28 applied Nevada corporate law.
24
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1 shall be individuals who support the purposes of the

2 corporation and make a financial contribution to the
3 corporation each calendar year," and that "[t]he
4 corporation shall have one membership class." (Reply
5 App. of Evid. Ex. 8 at 2.) It does not, however, contain
6 any provision prohibiting Plaintiff's Board of Directors
7 from using their authority to create additional classes
8 and criteria of membership.
9
10 Furthermore, the law of the District of Columbia does
11 not require the harsh result Defendants advocate. The
12 District of Columbia Nonprofit Corporation Act (the
13 "Corporation Act") provides that a nonprofit corporation
14 shall designate its membership class or classes and
15 accompanying qualifications "in the articles of
16 incorporation or the bylaws." D.C. Code § 29-301.12
17 (emphasis added). The Corporation Act further provides
18 that articles of incorporation shall contain "any
19 provision which the incorporators elect to set forth . .
20 . designating the class or classes of members, stating
21 the qualifications and rights of the members of each
22 class and conferring, limiting, or denying the right to
23 vote." D.C. Code § 29-301.30(a)(5) (emphasis added).
24 Viewed together, these provisions offer flexibility and
25 broad discretion to incorporators as to where they choose
26 to describe membership classes and qualifications. The
27 ability to describe one class of members in the articles
28
25
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1 of incorporation and another in the bylaws falls within

2 this broad discretion.
3
4 B. Standard of Review
5 As indicated during the hearing on April 26, 2010,
6 the Court is inclined apply the standard of review set
7 forth in Witt v. Dep't of the Air Force, 527 F.3d 806,
8 819 (9th Cir. 2008) — i.e., that "when the government
9 attempts to intrude upon the personal and private lives
10 of homosexuals, in a manner that implicates the rights
11 identified in Lawrence, the government must advance an
12 important government interest, the intrusion must
13 significantly further that interest, and the intrusion
14 must be necessary to further that interest" — when
15 considering Defendants' challenge to Plaintiff's
16 substantive due process claim. Neither side addressed
17 whether or not the DADT Policy survives the Witt standard
18 in their papers in support of and opposition to the
19 Motion. The Court thus grants both sides leave to submit
20 further briefing addressing application of the Witt
21 standard of review to the DADT Policy.
22
23 IV. CONCLUSION
24 For the reasons set forth above, the Court DENIES
25 Defendants' Motion to the extent it is based on a lack of
26 standing. The Court grants the parties leave to file
27 supplemental briefs for the sole purpose of discussing
28
26
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1 application of the Witt standard to Plaintiff's

2 substantive due process claim. Defendant may file its
3 supplemental memorandum of points and authorities, along
4 with any further supporting evidence, no later than June
5 9, 2010. Plaintiff may file its response no later than
6 June 23, 2010. Neither side's supplemental memoranda
7 shall exceed fifteen pages, exclusive of tables of
8 contents and authorities.
9
10
11
12 Dated: May 27, 2010
13 VIRGINIA A. PHILLIPS
15
16
17
18
19
20
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6
7
10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP
non-profit corporation, ) (Ex)
12 )
Plaintiff, ) [Motion filed on March 29,
13 ) 2010]
v. )
14 ) ORDER DENYING DEFENDANTS'
UNITED STATES OF AMERICA ) MOTION FOR SUMMARY JUDGMENT
15 and ROBERT M. GATES, )
)
17 Defendants. )
________________________ )
18
19 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"
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1
2 or "implementing instructions") 1332.14, 1332.30, and
3 1304.26. Defendants now move for entry of summary
4 judgment.
5
6 I. BACKGROUND
7 The Court's May 27, 2010 Order recites the statutory
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
19 in Part Defendants' Motion to the extent it challenged
20 Plaintiff's standing to bring this action. The Court
21 granted the parties "leave to file supplemental briefs
22 for the sole purpose of discussing application of the
23
24
25
1
26 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.
2
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1 Witt2 standard to Plaintiff's substantive due process

2 claim." (Docket No. 170 at 26:26–27:2.) 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
9 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, 247–48 (1986). The moving party must show
14 that "under the governing law, there can be but one
15 reasonable conclusion as to the verdict." Anderson, 477
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 2
Witt v. Dep't of Air Force, 527 F.3d 806 (9th Cir.
28 2008).
3
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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 non-
11 moving party to show that there is a genuine issue of
12 material fact that must be resolved at trial. Fed. R.
13 Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477
14 U.S. at 256. The non-moving party must make an
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
21 with respect to any affirmative defense. Payan v.
22 Aramark Mgmt. Servs. Ltd. P'ship, 495 F.3d 1119, 1122
23 (9th Cir. 2007).
24
25 A genuine issue of material fact will exist "if the
26 evidence is such that a reasonable jury could return a
27 verdict for the nonmoving party." Anderson, 477 U.S. at
28
4
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1 248. In ruling on a motion for summary judgment, the

2 Court construes the evidence in the light most favorable
3 to the non-moving party. Barlow v. Ground, 943 F.2d
4 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac.
5 Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir.
6 1987).
7
8 III. DISCUSSION
9 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
21 remaining claims allege violation of substantive due
22 process and of the First Amendment. Defendants argue
23 they are entitled to summary judgment on each of these
24 claims. The Court addresses each separately.
25
26
27
28
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1 A. Substantive Due Process

2 1. Standard of Review
3 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." Id. at 819.
13
14 Defendants argue the DADT Policy need only survive
15 rational basis review, i.e., it is "rationally related to
16 a legitimate governmental purpose." Kadrmas v. Dickinson
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." Matsuda, 512 F.3d at
27 1156 (quoting United States v. Salerno, 481 U.S. 739, 746
28
6
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1 (1987)). Conversely, courts employ a heightened standard

2 of review where state actions implicate fundamental
3 rights.
4
5 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. Id.
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 7:16–9:6.) 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
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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
9 applies depends not on the nature of the legal challenge,
10 but rather on the nature of the right implicated. See,
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, 767–68 (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. The Supreme Court has applied
22 heightened scrutiny to facial challenges where
23
24 3
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;
27 Wash. State Grange, 552 U.S. at 457;; S.D. Myers, Inc. v.
City & County of San Francisco, 253 F.3d 461, 467 (9th
28 Cir. 2001).
8
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1 fundamental rights were implicated. See Planned

2 Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 845, 877–78
3 (1992) (applying intermediate scrutiny to facial
4 challenge).
5
6 In Witt, the Ninth Circuit recognized that the DADT
7 Policy implicates fundamental rights protected by
8 Lawrence. See Witt, 527 F.3d at 819. Although it noted
9 the as-applied nature of the plaintiff's challenge, the
10 Witt court did not expressly limit its holding to as-
11 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 2. Defendants Fail to Show They Are Entitled to
23 Summary Judgment under the Witt Standard
24 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
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1 under a heightened level of scrutiny. Instead,

2 Defendants again have sought a stay of this action,4
3 (Defs.' Supp. Br. at 3–6), argued that rational basis is
4 the appropriate standard of review, (Defs.' Supp. Br. at
5 6–9), 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 9–12),
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 (Defs.' Supp. Br. 13–15).
13
4
The Court addresses Defendants' request for a stay
14 separately. (See infra, Section III.C.)
15 5
This argument fails, as it ignores the Witt court's
16 819 ("Wedisavowal
express of Beller's holding. Witt, 527 F.3d at
also conclude that our holding in Beller, 632
17 F.2d 788, that a predecessor policy to DADT survived
heightened scrutiny under the Due Process Clause, is no
18 longer good law."), 820 ("Beller's heightened scrutiny
analysis and holding therefore have been effectively
19 overruled by intervening Supreme Court authority.").
6
20 Defendants maintain that Plaintiff has failed to
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
26 Defendants rely on in support of this proposition are FCC
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.
28 (continued...)
10
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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. First Amendment
9 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 7
(...continued)
25 Goldman related to a military regulation, not an act of
Congress. Furthermore, the regulation at issue applied
26 only to the dress codes of on-duty service members. The
DADT Policy is far broader in its reach and affects
27 wholly different substantive rights; thus it is not
entitled to the same degree of deference as a uniform
28 dress regulation.
11
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1 under the challenged statute or otherwise."8 (Mot. at

2 24.)
3
4 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 21–22.) 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. (See June 9, 2009 Order at
21 23–24.)
22
23
24
25
8
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 22–23.)
The Court's June 9, 2009 Order, however, contains no such
28 limitation.
12
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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. (Id.)
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
15 omitted) (emphasis in original).) "In other words, the
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
24 reasoning in Holmes, which remains binding precedent on
25 this issue. See Holmes, 124 F.3d at 1134–36; Hensala v.
26 Dep't of Air Force, 343 F.3d 951, 957–59 (9th Cir. 2003)
27
28
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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. 124 F.3d at
8 1129–32. 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 [U]nder the statements prong of the "don't
ask/don't tell" policy, service members are not
16 discharged for having a homosexual "status." The
discharges result because of actual conduct or a
17 propensity for conduct that is prohibited. [The
plaintiffs'] respective declarations of homosexual
18 orientation did not automatically lead to their
discharge; rather, their declaration was coupled
19 with their tacit acceptance of the link between
their orientation and their conduct, as evidenced
20 by their failure to show that they did not engage
in, attempt to engage in, have a propensity to
21 engage in, or intend to engage in homosexual acts.
22
Id. at 1135.
23
24
As noted above, the Court already dismissed
25
Plaintiff's claim to the extent it sought to challenge
26
the use of statements as evidence of a propensity to
27
engage in conduct. (June 9, 2009 Order at 23.) In other
28
14
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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. (Id.
24 at 23.) Thus, according to Plaintiff, the DADT Policy
25 chills the constitutionally protected speech of service
26 members who have not been discharged.
27
28
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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.'" Members of the City
7 Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
8 789, 796 (1984). 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. See, e.g.,
24 Vincent, 466 U.S. at 798-99; Village of Schaumburg v.
25
26 9
Plaintiff does not make this argument, which would
27 be foreclosed in light of the Court's June 9, 2009 Order,
holding the use of service members' statements as
28 admissions constitutional under Holmes.
16
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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. Rather,
28
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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. See Vincent, 466 U.S. at
4 796–97.
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. A Stay of This Action Is Not Warranted
23 In their Supplemental Brief, Defendants again seek a
24 stay of this action.10 Defendants appear to advance three
25
10
26 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
28 (continued...)
18
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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 1. A Stay Is Unlikely to Moot This Action
11 Defendants argue that a stay is appropriate because a
12 measure to repeal the DADT Policy currently is pending in
13 both houses of Congress. Defendants contend that "the
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." (Defs.'
19 Supp. Br. at 6:17–20.)
20
21 A stay of this action on the basis of this pending
22 legislation would be unjustified for at least two
23 reasons. First, at this time it is speculative to assert
24 that the measures in question, section 591 of Senate Bill
25
26 10
(...continued)
27 substantive due process claim." (Docket No. 170 at
26:26–27:2.) The Court nevertheless considers the merits
28 of Defendants' request.
19
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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);
26 H.R. 5136, 111th Cong. § 536(b)(2)(C) (2010). Again, the
27 measure provides no deadline for the President to
28
20
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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
5 legislation, were it to become law, would not result in
6 imminent repeal of the DADT Policy. Given the many
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 2. The Court Is Not Obligated to Stay This Action
14 to Avoid Constitutional Questions
15 Defendants cite the well-established principle that
16 "courts should not decide constitutional issues if they
17 can reasonably avoid doing so." (Defs.' Supp. Br. at
18 4:8–9.) This is a canon of construction, however. See
19 Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105–06
20 (1944) (applying doctrine of avoidance to require courts
21 to await determinations on local law issues before
22 reaching questions of constitutionality). Whether or not
23 to stay a case is a separate matter, one within the
24 Court's discretion. 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
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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, 863–64 (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 3. The Court Is Not Obligated to Defer to the
11 Judgment of the Legislative and Executive
12 Branches
13 Defendants' argument that "Congress, rather than the
14 courts, [should] make decisions regarding the military,"
15 (Defs.' Supp. Br. at 6:9–10), also lacks merit. It is
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." Hamdi v. Rumsfeld,
26 542 U.S. 507, 535 (2004). This role "does not infringe
27 on the core role of the military." Id. Defendants have
28
22
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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. Accordingly, the
4 Court declines to enter a stay.
5
6 IV. CONCLUSION
7 For the reasons set forth above, the Court DENIES
8 Defendants' Motion.
9
10
11 Dated: July 6, 2010
12 VIRGINIA A. PHILLIPS
United States District Judge
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1

CENTRAL DISTRICT OF CALIFORNIA
2 EASTERN DIVISION-RIVERSIDE
3
HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
4
5 LOG CABIN REPUBLICANS, )
)
6 Plaintiff, )
)
7 V. ) DOCKET NO. CV 04-8425 VAP
)
8 UNITED STATES OF AMERICA, )
et al., )
9 )
Defendants. )
10 ________________________________)
11
REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGS
12 Riverside, California
Monday, April 26, 2010
13
14 PHYLLIS A. PRESTON, CSR
License No. 8701
15 Federal Official Court Reporter
United States District Court
16 3470 Twelfth Street
Riverside, California 92501
17 Stenojag@aol.com
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2
1 APPEARANCES
2
For the Plaintiff: WHITE & CASE
3 By: DAN WOODS
PATRICK HUNNIUS
4 633 West Fifth Street, Suite 1900
Los Angeles, California 90071-2007
5
6
7 For the Defendants: U.S. DEPARTMENT OF JUSTICE
By: PAUL FREEBORNE
8 IAN GERSHENGORN
SCOTT SIMPSON
9 CAPTAIN PATRICK GRANT
20 Massachusetts Avenue, NW, Room 6108
10 Washington, DC 20001
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1 MONDAY, APRIL 26, 2010, RIVERSIDE, CALIFORNIA

2 ---o0o---
3 THE CLERK: Item No. 7, CV04-8425 VAP, Log Cabin

4 Republicans versus United States of America.
5 Counsel, please state your appearance.
6 MR. WOODS: Good afternoon, Your Honor. Dan Woods,
7 White & Case, for the plaintiff, Log Cabin Republicans, and
8 Patrick Hunnius from our office.
9 THE COURT: Thank you. Good afternoon.
10 MR. FREEBORNE: Good afternoon, Your Honor. Paul
11 Freeborne on behalf of the United States and Secretary Gates.

12 With me at counsel table are my colleagues Scott Simpson, Ian
13 Gershengorn and Captain Patrick Grant.
14 THE COURT: Good afternoon.
15 Well, I haven't checked the electronic filing since
16 about 11:30 this morning, so I hope I'm up to date. Nothing
17 filed since 11:30?
18 MR. WOODS: You are up to date.
19 THE COURT: All right. Then I'm up to date.
20 Things have been changing quickly.
21 The Court sent out, as I think you all know, a
22 tentative ruling late last week, on Thursday I believe, which
23 was addressed not to all the issues that the parties have
24 briefed in connection with this motion for summary judgment
25 that's before the Court today, but addressed only to the
4
1 issue of standing, which was one of the issues briefed, of

2 course, in the motion, but addressed to an aspect of standing
3 that although raised in -- certainly standing had been raised

4 in the motion, but an aspect of standing that although
5 raised, I did not feel had been necessarily fully addressed
6 by the parties.
7 So, in an effort to make sure that both sides were
8 aware of my concerns with whether the Court had jurisdiction
9 over the case, we sent out a tentative ruling early so that
10 the parties would be prepared to address it today. And then
11 both sides filed further supplemental briefing I think after

12 that. I can't remember the exact date, but by Friday I had
13 received a supplemental memorandum from the plaintiff, and
14 then in response to that, I think it was entitled a response
15 brief, the defendants' response to the plaintiff's
16 supplemental filing from the defendants.
17 And then this morning two more documents were
18 filed. One, the declaration of Mr. Meekins, and evidentiary
19 objections filed by the plaintiff to some of the evidence
20 that was submitted by the Government earlier. I have not
21 looked -- I have read the declaration of Mr. Meekins. I have
22 not had time to review the evidentiary objections.
23 So, the first question is whether the tentative
24 ruling is superseded by these supplemental filings from
25 Thursday, Friday, and this morning.
5
1 When I read and reviewed the supplemental filings

2 late last week, and I had a long further tentative ruling to
3 read to you, but I think I'll skip that, at least at this

4 point, unless the parties want to argue that. I'll skip it
5 because I think, although I've thought a lot about the
6 arguments and done some further research in connection with
7 the arguments raised by the plaintiff, that the Court should
8 consider the standing issue as of April 28, 2006, the day
9 that the amended complaint was filed. I think that that is
10 mooted by the information contained in the declaration of
11 Mr. Meekins, which states that, in short -- it's a very short

12 declaration, but in short, that John Doe paid dues before the
13 date that this action was commenced on October the 12th,
14 2004.
15 Mr. Meekins was on the national board of the
16 plaintiff, was on the board of directors at the time this
17 action was filed in October of 2004, and he was also an
18 associate of White & Case, the plaintiff's counsel. He,
19 Mr. Meekins, met with Doe before the case was filed and with
20 at least three others about the filing of the case, and that
21 Doe was so concerned about keeping his identity secret and
22 confidential that he paid the money for his dues through his
23 -- in Meekins' words, through his lawyer, because Meekins
24 considered himself Doe's lawyer. And Doe was at the time a
25 member of the board of directors and he paid that money to
6
1 LCR or Log Cabin Republicans as Doe's dues.

2 So, I think that moots the standing issue, because
3 if either Nicholson or Doe was a member, the association, of

4 course, only needs one person to have been a member at the
5 time. At least for purposes of the hearing today, I don't
6 think I necessarily need to hear argument on the issue of
7 whether Mr. Nicholson was a member.
8 It's an interesting -- well, to me it's an
9 interesting question. I've read many times over all the
10 cases that both sides have cited on this issue, the
11 McLaughlin case, the Loux v. Rhay case, and a few others

12 besides all of the cases that you've cited to me, and I think
13 it's an interesting crinkle when you have associational
14 standing on top of the issue of an action being dismissed and
15 then an amended complaint being filed. But I don't
16 necessarily have to reach that issue as to whether
17 Mr. Nicholson -- and then there's the issue that the
18 Government raises about whether Nicholson as an honorary
19 member was really a member under the bylaws, but I don't
20 necessarily need to reach that issue if, as I believe, Doe
21 was a member before the action was filed. And that's the way
22 the case appears to me now.
23 However, and I think you've all appeared in front
24 of me enough to know this, I usually -- well, almost always,
25 when I have a motion to be heard, I give out a written
7
1 tentative.
2 On the merits of this case, although I've read
3 everything that the parties have submitted and read many of

4 the cases, I didn't really prepare thinking that this case
5 was really revolved around standing. I would like the
6 parties to argue it today, and I have several questions to
7 direct to both sides on the merits of the motion.
8 I'm concerned about whether, after hearing you
9 argue today, I will be able to get a final ruling out to you
10 in time that you can finish your trial preparation such that
11 we can keep the June 14th trial date. I didn't mean to

12 elicit such a hasty response. I guess I could listen to your
13 response to that. So I'm thinking that I'm probably going to
14 have to move the trial date a short -- not a significant
15 period, but a short period, but I am prepared to have you
16 argue. I do have several questions to focus the argument on
17 the substance or the merits of the claims that are raised.
18 Since you both, apparently, want to be heard as to
19 the trial date and the issues with respect to the standing,
20 you can do so first, if you'd like.
21 MR. WOODS: Well, Your Honor, I was just going to
22 say that in light of the tentative ruling and with the filing
23 just today of Mr. Meekins' declaration, we aren't entirely
24 surprised the Court doesn't have a tentative ruling on the
25 merits of the motion. We're quite happy, if it's your
8
1 desire, to come back another day and argue that. At the same
2 time we're happy to argue it today, but whatever your choice
3 would be. We understand, of course, given the timing of

4 everything, that the trial date would have to be moved.
5 THE COURT: All right. Mr. Freeborne.
6 MR. FREEBORNE: Well, Your Honor, I would like to
7 speak first to the standing issue, if I may.
8 THE COURT: Go ahead.
9 MR. FREEBORNE: Your Honor, with all due respect,
10 your tentative ruling is correct and it properly disposes of
11 this case. The operative complaint here is the first amended

12 complaint. The cases make clear that when the action is
13 initiated. When Judge Schiavelli afforded plaintiff the
14 opportunity to correct the deficiency in its original
15 complaint, he was very clear not to dismiss the underlying
16 action. So standing, as Your Honor correctly ruled in the
17 tentative, is determined at the time that this action was
18 initiated.
19 THE COURT: Well, let me stop you there, though,
20 because that's procedurally almost exactly what happened in
21 the case I referred to a moment ago, Loux v. Rhay, which is
22 the case where a state prisoner sued the State of Washington.
23 And it was eventually decided on Eleventh Amendment immunity
24 grounds. But what's interesting about that case is there
25 were three holdings in the Circuit, and it was Judge Byrne
9
1 from this court sitting on the Circuit who wrote the

2 decision, and what you just said was the first holding, which
3 was there was a complaint filed. It was dismissed. And so

4 first the Court -- the Ninth Circuit held, all right, the
5 dismissal of that action, as you said, was moved to amend, so
6 it didn't get rid of the case.
7 But, nevertheless, although the trial court's
8 dismissal of the original complaint did not amount to
9 dismissal of the action, the amended complaint superseded the
10 original complaint and thereafter the original complaint
11 should be treated as nonexistent. There was a discussion of

12 standing in this case, even though, as I said, it really
13 turned on Eleventh Amendment immunity. But if you applied
14 that logic to our case, the dismissal of the original
15 complaint for lack of jurisdiction, which is exactly what
16 happened in the Loux case, means that it should be treated,
17 as the Ninth Circuit said there, as nonexistent.
18 So then it follows, doesn't it, that the Court
19 should not do a standing analysis based on the date of the
20 filing of the action?
21 MR. FREEBORNE: Your Honor, absent new claims or
22 new parties --
23 THE COURT: Which there were neither of in
24 Loux v. Rhay.
25 MR. FREEBORNE: Well, Your Honor, perhaps they
10
1 could refile and perhaps that would be the remedy here. But
2 what we have here is a situation where they filed suit in
3 2004, October 12th, 2004, and they attempted to manufacture

4 members to support their claim. That's the opposite of how
5 it should work and for good reason. Hunt is very clear in
6 requiring you bring suit, and when associational standing is
7 at issue, you must have a member at hand at that time who
8 could sue on his or her own right.
9 THE COURT: I agree with you, you can't manufacture
10 standing, and you can't manufacture persons, but given what
11 the Meekins' declaration says is they had a member.

12 MR. FREEBORNE: If I could turn to that point?
13 THE COURT: Why don't you.
14 MR. FREEBORNE: With respect to the -- first of
15 all, it's an eleventh-hour declaration and we have
16 considered, but it's improper. They've had six years to come
17 forward and prove that they had standing in this case.
18 THE COURT: Well, let me -- in terms of the
19 eleventh-hour issue, the Government didn't squarely raise
20 this. I mean, you certainly have raised standing. It's not
21 the first time you've raised standing, you've raised it
22 before, but you did raise it in this motion. And this is a
23 very difficult issue for the Court. When I say "for the
24 Court," whether I raise something that a party hasn't
25 raised. But when it comes to standing, the Court has no
11
1 choice. The Court has to raise even an aspect of standing

2 whether one side or the other -- when it comes to any
3 jurisdictional issue, if you haven't raised it, the Court has

4 to. The Court has a duty to.
5 So, although you've raised standing, you had to
6 raise the issue that I felt duty bound to raise, which was
7 that the declaration was more general than I thought it
8 should have been. So, to criticize, if that's not too harsh
9 a word, to criticize the plaintiffs for coming in at the
10 eleventh hour, if I hadn't raised this in the tentative
11 ruling, they wouldn't have come in at the eleventh hour.

12 MR. FREEBORNE: Your Honor, if I could respond to
13 that. The law in this case is Judge Schiavelli's March 22nd,
14 2006 order in which he required them to identify by name a
15 member, not an anonymous member, a member by name. And so,
16 yes, our briefing was directed at Mr. Nicholson, because I
17 think we all now agree that Mr. Nicholson has been proven not
18 to be a member either at the time of the initial complaint
19 or, frankly, even in 2006. And so, yes, our briefing was
20 focused on Mr. Nicholson because that's what we understood
21 the law of the case to be.
22 Now, with respect to Mr. Doe, as Your Honor is
23 aware, they have offered up a declaration in the past for
24 Mr. Doe. It's very curious now that they've offered up a
25 declaration from counsel. And there's a lot of questions to
12
1 be raised about the Doe declaration.

2 First of all, Mr. Meekins' is very carefully
3 drafted. Mr. Meekins says funds were transferred to him.

4 When? We don't know. He also concludes in the final
5 paragraph that he considers Mr. Doe a member. Well, that
6 doesn't leave us in any better position than we were after
7 the Bradley declaration. He, too, considered Mr. Doe to be a
8 member, but that doesn't sustain their burden of proof on the
9 issue.
10 And even if they could get beyond all those
11 hurdles, Judge Schiavelli's order on March 22, 2006, governs

12 this case, and for good reason. It was only because we could
13 depose Mr. Nicholson and, frankly, Mr. Hamilton, their
14 director, were we able to learn that they had -- that
15 Mr. Nicholson was not a member at the time that this action
16 was commenced, and he was not a member at the time of the
17 filing of the first amended complaint.
18 What the Meekins' declaration does show us, though,
19 is the extent to which they have attempted to manufacture
20 standing in this case. What it makes clear is that they
21 didn't have any member. They purportedly went to four
22 enlisted service members and say, "Will you help us with this
23 lawsuit?" And then they attempted to -- they apparently were
24 able to enlist Mr. Doe, but again, the declaration is very
25 unclear as to whether or not he was a member. And all
13
1 Mr. Meekins tells us is that they considered Mr. Doe to be a

2 member, not that he was a member, not that he's on the
3 membership roles, not that he was on the membership roles

4 back in 2004.
5 Your Honor, all of this points to the fact why
6 Judge Schiavelli's ruling was correct. We need to have an
7 identified member which they said that they have. They said
8 that in the original complaint. They said, "We have
9 discharged members." And to identify one of those
10 individuals certainly doesn't cause them any harm, the
11 individuals harm, because they've been discharged.

12 Moreover, Mr. Woods handed me at Mr. Hamilton's
13 deposition a survey of anonymous discharged members. They
14 said, "We have plenty of discharged members." They can
15 identify one of those discharged members to sustain their
16 burden of showing standing, associational standing. To
17 manufacture standing as they've done in this case in a
18 constitutional challenge, Your Honor, is an improper forum
19 for this Court to be exercising Article III powers,
20 particularly when we have a facial challenge.
21 As Your Honor is aware, facial challenges are
22 independently frowned upon for good reason. They have
23 potential of intervening the democratic process. What we
24 have here from all appearances is a generalized grievance
25 where the Court should not be exercising its Article III
14
1 powers, particularly where we have a constitutional challenge

2 at issue.
3 So, with all due respect, we believe that they have

4 not sustained their burden of proving that Mr. Doe was a
5 member and, therefore, a proper basis for the Court to find
6 associational standing, but even if you were, the March 22,
7 2006 order should govern this case.
8 THE COURT: I've addressed that already in the
9 order that I issued about what anonymous means and what the
10 circumstances of this case mean in terms of the exception in
11 rare cases where a person may be identified as a John Doe.

12 But, Mr. Woods, do you want to respond to the other
13 arguments?
14 MR. FREEBORNE: Your Honor, if I could speak to
15 that analysis?
16 THE COURT: I've already ruled on that issue, so I
17 think you've preserved it.
18 Mr. Woods, do you want to respond on the other
19 issues?
20 MR. WOODS: Yes, Your Honor. Let me just focus on
21 standing for now. I'm happy to talk today about the merits,
22 if you would like.
23 THE COURT: Let's focus on standing first.
24 MR. WOODS: First of all, associational standing is
25 a recognized part of our legal system. There are several
15
1 cases cited in the briefs where courts do find associational

2 standing to exist, which includes the Biodiversity case in
3 the Ninth Circuit, the Associated General Contractors case in

4 the Ninth Circuit, and from the Supreme Court, the
5 Friends of the Earth case and the Hunt case.
6 We all agree, I believe, on what the elements of
7 associational standing are. Three elements in the Hunt case,
8 and the Government is only contesting one of them, which is
9 whether one member of the organization has standing in his or
10 her own right to present the claim.
11 What the Government misstates, and again,

12 Mr. Freeborne's argument misstates again, is the burden on
13 this motion of establishing this issue. The case that I
14 believe, Your Honor, sets out this most clearly is the Lujan
15 case which is cited in your tentative. It's a Supreme Court
16 case and it talks about the burden of standing at different
17 stages of the litigation. I know this is important, so if
18 you don't mind, bear with me. I just want to read a little
19 bit of it without citing the cases that relies on them.
20 This is the Lujan case, Your Honor, page 561. "The
21 party invoking federal jurisdiction bears the burden of
22 establishing these elements. Since they are not mere
23 pleading requirements but rather an indispensable part of the
24 plaintiff's case, each element must be supported in the same
25 way as any other matter on which the plaintiff bears the
16
1 burden of proof, i.e., with the manner and degree of evidence

2 required at the successive stages of the litigation.
3 At the pleading stage general factual allegations

4 of injury resulting from the defendant's conduct may suffice,
5 for on a motion to dismiss we presume that general
6 allegations embrace those specific facts that are necessary
7 to support the claim.
8 In response to a summary judgment motion, however,
9 the plaintiff can no longer rest on mere allegations, but
10 must set forth by affidavit or other evidence specific facts,
11 which for purposes of the summary judgment motion will be

12 taken to be true."
13 So, in this argument, Your Honor, it's not that we
14 have the burden of proving standing to exist, we only have,
15 in response to the Government's motion, the burden of showing
16 the genuine issue of material fact does exist. And we have
17 carried that burden, we believe, Your Honor, both with
18 respect to Colonel Doe and with respect to Mr. Nicholson.
19 So the evidence before you on Colonel Doe's
20 standing is contained in his original declaration,
21 Mr. Bradley's declaration, and now in Mr. Meekins'
22 declaration. And all of that evidence shows you that he was
23 a member of Log Cabin Republicans prior to the filing of the
24 original complaint which was in October of 2004.
25 At a minimum, Your Honor, this evidence that we
17
1 presented to you at least creates a genuine issue of material

2 fact on this issue. And we may have to prove it at trial as
3 well, but that is the standard and we have met that

4 standard.
5 With respect to Mr. Nicholson, Your Honor, the
6 question, first of all, is a legal question about when you
7 look at the issue, at the time we filed the original
8 complaint or at the time of the filing of the first amended
9 complaint. And in our brief we did cite the case you've
10 already mentioned, the Ninth Circuit case. And we noticed
11 that in the Government's response to our supplemental brief

12 there was no mention of that case or of the treatise that
13 also stated the same point.
14 Also, Your Honor, sorry to fill you up with one
15 more case for you to look at in your reading on this issue. I
16 apologize again for not citing it earlier, but we were short
17 of time. An additional case that we believe supports our
18 position, Your Honor, is called Forum for Academic and
19 Institutional Rights, Inc. v. Rumsfeld. The Citation is 291
20 F.Supp.2d, 269, from the District of New Jersey in 2003.
21 THE COURT: Sorry, 291 F.Supp.2d?
22 MR. WOODS: At 269. You will find, Your Honor,
23 there is subsequent history to the case on the other issues
24 in the case but not on the standing issues raised. The
25 plaintiff in that case, Forum for Academic and Institutional
18
1 Rights, is called FAIR. It's a Solomon Act case in which

2 FAIR and other -- FAIR was an association of law schools
3 challenging the Solomon Act. And the standing in that case

4 was raised by a Government motion to dismiss. And prior to
5 the hearing on the motion to dismiss, FAIR identified by name
6 two law schools who were members of the organization. And
7 the standing issue is decided in that case on a second
8 amended complaint that had been filed in that case that
9 included the names of the two law schools that had not
10 previously been mentioned in the prior complaints. In that
11 case the District Court found standing to exist. The

12 subsequent history has to do with the other issue in the case
13 which is whether the plaintiffs were entitled to preliminary
14 injunction.
15 I also want to say, Your Honor, that some of the
16 cases that the Government cites in its supplemental papers
17 actually do not support the positions cited by the
18 Government, and perhaps indeed support our position. One of
19 those is the Lynch case which demonstrates its standing in
20 the class action case which is somewhat analogous to our
21 case. Can and should be evaluated based on when the
22 proffered representative is added to the litigation, need not
23 be determined at the time of commencement. The Court their
24 evaluates standing based on the later added class
25 representative, not the class representative named in the
19
1 original complaint.
2 The other case that the Government relies on here
3 is the Schreiber case. And the Government quotes soundbites

4 from that case, but the actual case says something else.
5 It's a very odd case where the plaintiff had standing on a
6 patent litigation when they filed the case, then transferred
7 the patent rights and then at some point prior to judgment
8 got them back.
9 And again, the Court there does not look at
10 standing at any one particular point in time and actually
11 says, with respect to the general rule about standing, that

12 the plaintiff must have initial standing and continue to have
13 a personal stake in the outcome of the case that, quote, this
14 rule is not absolute. So that case, we believe, also
15 establishes our position that you could and should look to
16 standing as of the date of the filing of the first amended
17 complaint.
18 And if you agree with that proposition, Your Honor,
19 we have also established at least a genuine issue of material
20 fact as to whether Mr. Nicholson has standing. We have
21 evidence before you that showed bylaws of the Log Cabin
22 Republicans allowed for honorary members and that
23 Mr. Nicholson became an honorary member in April of 2006.
24 That evidence is found in the Engle declaration, Mr.
25 Nicholson's deposition, and in the Ensley declaration.
20
1 It is also our view, Your Honor, that the

2 Government does not get to decide who is or isn't a member of
3 the Log Cabin Republicans. It is our position that's what

4 the Government seems to be trying to do by questioning the
5 relationship between the bylaws of our organization and the
6 articles of the corporation.
7 THE COURT: Well, let me interrupt you for a moment
8 on this last point. The McLaughlin case -- you mentioned
9 class actions a moment ago, and the
10 McLaughlin v. County of Riverside case, which perhaps not
11 surprisingly I am familiar with, is a class action case that

12 started out with a single named plaintiff who filed for
13 putative class action. And when the Supreme Court analyzed
14 the standing question, it expressly referred only to the
15 filing of the second amended complaint when determining the
16 basis of the standing. Now, Mr. Freeborne, I'm sure, would
17 point out correctly the single named plaintiff filed the
18 putative class action which claimed that the County violated
19 his rights under the Gerstein case about timely hearings to
20 determine whether a warrantless arrest had been made to
21 determine probable cause, speedy arraignment, and bail.
22 And then when the County moved to dismiss for lack
23 of standing on the basis that that plaintiff hadn't shown
24 that he would again be subject to all of this
25 unconstitutional conduct, then three more plaintiffs joined
21
1 in. So I think, as Mr. Freeborne argued earlier, it's a case

2 where there were additional plaintiffs added. The thing
3 that's similar in a sense to this case where we have

4 associational standing is that was a class action. So
5 although there are, in a sense, named plaintiffs, they are
6 representing a class just as an association here. There's
7 some similarities or an analogy can be drawn between
8 associational standing and the requirements of class
9 representation.
10 So the three additional plaintiffs, the
11 representative plaintiffs, join in filing a second amended

12 complaint. It's a little hazy. I think the judge in
13 question never ruled on the first amended complaint but
14 allowed a second amended complaint to be filed by a motion to
15 dismiss the first amended, but a second amended complaint was
16 filed. And the County moved to dismiss for lack of standing
17 again.
18 And as I said, the Supreme Court only analyzed
19 standing from at the point in time which the second amended
20 complaint was filed in July of 1988, adding the three new
21 plaintiffs as class representatives. So the defense in
22 the -- I think it's in their reply papers in this motion
23 argues that a complaint may be amended to show that
24 jurisdiction exists but -- it actually was argued again today
25 -- it can't be amended to create jurisdiction when it didn't
22
1 exist in the first place.

2 But I don't think you can escape the import of
3 McLaughlin where the Supreme Court only analyzed the standing

4 issue as of the date that the second amended complaint was
5 filed and not the date that the action was originally
6 commenced. So even if you argue that the focus on a later
7 date in McLaughlin can be explained as the result of the
8 addition of the new plaintiffs in that case, I'm not sure
9 that distinction is persuasive, because while in McLaughlin
10 there were three new plaintiffs that were added, the amended
11 complaint here, of course, remains one filed only by one

12 plaintiff, the association.
13 But the principles governing associational
14 standing, there only has to be a member of the association
15 who has standing, which is similar to the principles of
16 standing for purposes of -- it's similar to the principles of
17 having class members who are representative for purposes of a
18 class action, which is what happens and what often happens
19 when a class action is filed. And the representative in that
20 case was -- the representative class member was held not to
21 have standing and perhaps, therefore, defeating the entire
22 class's standing because he couldn't show that the
23 unconstitutional acts were likely to be repeated. But when
24 three more plaintiffs were added, standing was held to
25 exist.
23
1 So I'm not sure you can really distinguish the two

2 cases by saying, oh, but they had more -- more plaintiffs
3 were added, because if you've got a class and you've got an

4 association, in a sense, you still really have one
5 plaintiff. If you've got a class or an association, you've
6 got representative class members that have to be
7 representative, if you've got a class action. And in an
8 association you have to have at least one member who would
9 independently have standing, but the principle should be the
10 same.
11 Do you want to respond to that?

12 MR. FREEBORNE: Yes, Your Honor.
13 THE COURT: And then I'll let you finish your
14 argument.
15 MR. FREEBORNE: With respect to Lujan --
16 THE COURT: No, actually, if you could just respond
17 briefly on this point about McLaughlin.
18 MR. FREEBORNE: Well, Your Honor, when you add new
19 claims and you add new parties, of course, the standing that
20 exists will be determined based upon those new claims and
21 those new parties. Here the parties have remained the same.
22 And in Lujan what it makes clear is that, after the
23 discussion that Mr. Woods just read, is that where you're
24 suing on behalf of someone else. You recall in Lujan the
25 plaintiff argued, well, now that the Government had been
24
1 added as defendants there, that that solved the

2 redressability problem, and that's what Lujan specifically
3 rejected in footnote No. 4.

4 So, the point is, that you bring a lawsuit and --
5 THE COURT: I'm sorry, I have a conference call
6 scheduled.
7 (The Court and the clerk confer)
8 THE COURT: Go ahead.
9 MR. FREEBORNE: Your Honor, what Lujan makes clear
10 as well as the cases that actually address associational
11 standing, Biodiversity, for example, and the Laidlaw case, is

12 that when you bring an action and you purport to sue on
13 behalf of individual members, those members, of course, must
14 exist at the time of the suit. All the cases we've been
15 discussing don't address the associational context, again,
16 Biodiversity and Laidlaw do. And Lujan makes clear that
17 where you're suing on behalf of someone else, there's an
18 extra showing that Mr. Woods is not acknowledging in his
19 argument.
20 With respect to Mr. Nicholson, our argument is not
21 that we get to decide who is a member of Log Cabin
22 Republicans. We acknowledge that it's Log Cabin's decision
23 to make, but must be pursuant to the articles of
24 incorporation, which D.C. law makes clear in their articles
25 of incorporation that you're to have one class of members,
25
1 dues paying members, and the undisputed facts show that

2 Mr. Nicholson was not a dues paying member, even at the time
3 of the first amended complaint.

4 THE COURT: The bylaws don't provide for honorary
5 members?
6 MR. FREEBORNE: Your Honor, to the extent they do,
7 they're void, because they're in conflict with the articles
8 of incorporation. As Your Honor will recall, bylaws are not
9 reviewed by the government of the District of Colombia. The
10 articles of incorporation where Log Cabin is incorporated,
11 the government does review the articles of incorporation.

12 Those articles of incorporation make clear that there is only
13 one class of membership, the dues paying members. There's no
14 separate class for honorary members.
15 THE COURT: Well, the articles of incorporation are
16 filed with -- the equivalent is of the Secretary of State
17 from the state. But I'm not sure what your authority is for
18 the proposition that if it's in the bylaws and it's not in
19 the articles of incorporation, that makes that section of the
20 bylaws void, as you said.
21 MR. FREEBORNE: Your Honor -- sorry.
22 THE COURT: No, go ahead.
23 MR. FREEBORNE: I was going to say we have
24 authority. D.C. law makes that clear. Because, again, in
25 case law from this very Circuit makes clear, the District
26
1 Court's position makes clear that to the extent that bylaws

2 are in contravention of the corporation's articles of
3 incorporation, the bylaws are void. We have cited that

4 authority in our brief. And it just follows, because, again,
5 the corporation only exists because they have articles of
6 incorporation that have been blessed by the Government.
7 The facts of this case show, A, that those articles
8 of incorporation require the payment of dues, as Mr.
9 Hamilton, the Director of Log Cabin, acknowledged at his
10 deposition. To the extent the bylaws create a separate
11 category of members, honorary members, they're in conflict

12 with the articles of incorporation and therefore are void.
13 And the fact that they've now filed Mr. Meekins' declaration
14 is implicit acknowledgement of the dues paying aspect of
15 their membership, because that's why they highlight that
16 issue. But, again, they can't even --
17 THE COURT: Well, not necessarily. I mean it
18 doesn't -- there is no evidence that Mr. Doe -- I'm sorry, I
19 should be saying "Colonel." I know titles are important to
20 everyone, to get your name and the title correct, so I
21 apologize for that. Apparently, there's no evidence he was
22 ever made an honorary member, so they can't say he was an
23 honorary member, so they're saying he is a dues paying
24 member.
25 The reason I am so puzzled by this conflict between
27
1 the -- I didn't focus on it before, so I will go back and

2 look at the authorities that you're telling me about. It
3 just sort of goes against my -- assuming what you told me, I

4 mean it does seem like a drastic consequence that that part
5 of the bylaws would be void.
6 The Federal Bar Association, I don't know if you
7 remember, the Federal Bar Association provides for honorary
8 members for all judges. At least the bylaws do. I don't
9 know if the articles of incorporation do or not. But many
10 organizations have a very loose category of honorary
11 memberships. And I've never really thought about the

12 interplay between the articles of incorporation and bylaws,
13 so I'll take another look at that issue.
14 All right. You may continue.
15 MR. WOODS: Thank you, Your Honor. On that issue
16 there were no District Court cases cited for the proposition
17 that the bylaws would be void. Instead, the Government cited
18 a state court case from Nevada and a state court case from
19 Illinois. That's the authority they could find on this
20 point.
21 THE COURT: On the issue of whether bylaws are void?
22 MR. WOODS: Right.
23 THE COURT: Isn't there anything from the District
24 of Colombia?
25 MR. WOODS: No case cited in the papers, Your
28
1 Honor.
2 THE COURT: Do you have something to say? Did you
3 have some authority from the District of Colombia on that?

4 MR. FREEBORNE: We had a D.C. code, Your Honor,
5 Section 29-301-0512, which states clearly that bylaws cannot
6 be inconsistent with articles of incorporation under the laws
7 of the District of Columbia.
8 THE COURT: But it doesn't say in the code that
9 they're void?
10 MR. FREEBORNE: Well, it says they cannot be
11 inconsistent with the articles of incorporation. We cited

12 two state cases, the Nevada case as well as an Illinois case,
13 setting forth that proposition. Again, the D.C. law makes
14 clear that to the extent the bylaws are inconsistent with --
15 Your Honor, they can't be inconsistent with --
16 THE COURT: It says they can't be. It doesn't say
17 what the consequence is if they are?
18 MR. WOODS: Right.
19 MR. FREEBORNE: It defines the power of the
20 nonprofit corporation, the power to make and alter bylaws not
21 inconsistent with its articles of incorporation or the laws
22 of the District of Columbia for the administration and
23 regulation of the affairs of the corporation. So it defines
24 the power. So to the extent the bylaws are inconsistent with
25 the articles of incorporation, they are void pursuant to
29
1 D.C. law.
2 MR. WOODS: Again, Your Honor, it is our position,
3 and I think it's a correct position, that all this does is

4 possibly trade the genuine issue of material fact that would
5 have to be tried on the standing issue, again, only with
6 respect to Mr. Nicholson, not with respect to Colonel Doe.
7 Another small point, Your Honor. Counsel in his
8 argument seems to criticize our case as being a facial
9 challenge. And I want to tell you that facial challenges are
10 not inappropriate. There's nothing inappropriate about a
11 facial challenge. They're an important, recognized part of

12 constitutional law. The Lawrence case was a facial
13 challenge. Just last week the United States Supreme Court
14 cited another facial challenge, United States v. Stevens, and
15 reversed on constitutional grounds a facial challenge, an
16 animal cruelty statute and, of all things, an 8 to 1 vote of
17 our Supreme Court. So facial challenges are more than
18 appropriate.
19 I was prepared, Your Honor, to talk to you about
20 the consequences if you had stayed with your tentative ruling
21 about standing. I don't need to go into that now, but one of
22 the consequences might have been to ask you for an
23 opportunity to find more members, to file an amended
24 complaint, because all that would have done, Your Honor,
25 would be to require us to file a new lawsuit tomorrow, which
30
1 might have named Mr. Nicholson and Colonel Doe as members,

2 because there's no doubt that there are damages. There's no
3 point in doing that because we do have standing, we both

4 recognize now. And, again, our apologies --
5 THE COURT: Let me ask you -- let's go back to some
6 of the arguments that Mr. Freeborne made about what he
7 contends are the weaknesses in the declaration submitted by
8 Mr. Meekins.
9 MR. WOODS: I'm only going to tell you, Your Honor,
10 that going back six years trying to find out what happened
11 and what we've done in the short amount of time we've had, I
12 think we did a good job of finding out evidence and
13 presenting it to you. And, again, this creates a genuine
14 issue of material fact. Before this case is tried, whenever
15 it's tried, we will be better prepared to give you more
16 evidence on that, but I don't know what else to tell you. If
17 we need to have Mr. Meekins testify at trial on this, we
18 will. I imagine to have the other witnesses about the
19 honorary membership of Mr. Nicholson and the like testify at
20 trial.
21 Again, as I said, with respect to the Lujan case,
22 the standing issue is determined at different stages of the
23 litigation by the governing burdens that apply to each stage
24 of the lawsuit.
25 THE COURT: I'm going to take a short recess at
31
1 3:30 because I had a conference call on another case on a

2 status conference. And when they called at 3, Ms. Dillard
3 told them to call back at 3:30. So at 3:30 I'm going to take

4 a short recess to take that call in chambers. And then I'll
5 come back out and we'll talk. I want to at least have some
6 argument on some of the issues on the merits that I would
7 like to hear from the parties on.
8 But one last set of questions I have about the
9 Meekins' declaration. Mr. Freeborne has brought up some of
10 the Government's concerns with the Meekins' declaration in
11 terms of the -- I'm not concerned about the issue that the
12 Government has argued. I have listened to their argument,
13 but I'm not concerned about it being an eleventh-hour issue,
14 because the issue about the exact timing of Colonel Doe's
15 membership was not squarely raised except by the Court in the
16 form of the question raised in the tentative ruling. So the
17 fact that it wasn't dealt with until after the Court issued
18 the tentative ruling, I think that's the reason. But the
19 Court has a duty to raise issues regarding its jurisdiction,
20 including standing, on its own even if neither party has
21 raised it.
22 MR. WOODS: Your Honor, excuse me for interrupting.
23 On that point you're absolutely right. That specific point
24 was not even mentioned in the meet and confer session that
25 led to the motion for summary judgment.
32
1 THE COURT: All right. I'm not faulting either

2 side either for not, you know, either about raising it or for
3 not having anticipated it. That sometimes -- I just didn't

4 want to have the parties do all the work to prepare and then
5 come to court and have the Court raise something that needs
6 to be raised but everybody is caught by surprise.
7 But as to Mr. Freeborne's arguments about the
8 Meekins' declaration, I have done this once or twice before,
9 not in connection with the standing issue but actually in
10 connection with matters that have come up regarding
11 performance in criminal cases, in that sort of a context.

12 I'm not sure it's necessary, but one solution to the concerns
13 that the Government has raised about whether Colonel Doe is a
14 manufactured plaintiff, I'm not sure if that's really what
15 the Government is suggesting here, but if that's the
16 Government's contention, then it seems to me that the
17 solution for that, because that's a serious allegation, and
18 if that's the suggestion or the concern of the Government,
19 then the solution, it seems to me, is as follows:
20 That if I was persuaded that there was a serious
21 doubt as to the existence of a fictitious member, I mean
22 someone who is named with a fictitious name, and I stand by
23 my ruling that this is a rare case where it was appropriate
24 to allow someone to use a fictitious name, but to verify the
25 existence of someone who is allowed to proceed under a
33
1 fictitious name, then I would have a hearing where

2 plaintiff's counsel, rather than even filing it under seal,
3 just to make sure that there's -- in my experience with the

4 court, there hasn't been a situation where something that was
5 filed under seal was inadvertently disclosed, but just to
6 make sure that that doesn't happen, then I would allow a
7 hearing where plaintiff's counsel could physically bring into
8 court documents that would verify the existence of Colonel
9 Doe, the information about his service and so forth, bring
10 them into my courtroom and hand them to me.
11 I will either sit on the bench or take them into

12 chambers, review them, satisfy myself, and hand them back.
13 So they don't get filed with the court. I am the only one
14 who has eyes on them. And if I am satisfied that this is not
15 a fictitious person but just a fictitiously named real
16 person, then that's the end of the inquiry. If I am not
17 satisfied, then we'll have to have a further hearing on it.
18 But if the Government has -- I'm not sure I am
19 understanding the Government's concerns, but if I am
20 understanding the Government's concern correctly that there
21 is a manufactured plaintiff; that is, that the person is just
22 not fictitiously named but is fictitious, then that to me is
23 the way to verify that.
24 And as I said, I've done this procedure where
25 rather than having something filed under seal, it's usually,
34
1 as I said, I think I've done it twice before and it's been in

2 the context of very sensitive information with respect to
3 informants or private medical information, and that's the way

4 I've proceeded.
5 So I would let the parties talk about this, if
6 you'd want to, but that's the way I would proceed. And I'll
7 tell the parties that I have considered that in this case. I
8 might consider it in the future.
9 MR. WOODS: Well, Your Honor, what I understood the
10 Government to be saying about Mr. Meekins' declaration was
11 that there were four people he talked to, and he talked to

12 them shortly before the complaint was filed, and only one of
13 them became a plaintiff in the sense of a member of Log Cabin
14 Republicans who was injured by the policy.
15 You know, what I think the Government is missing is
16 that this isn't intended to show you the entire universe of
17 information about efforts to locate plaintiffs or members who
18 have been injured by the policy. What we did was to find for
19 you the person who had personal knowledge about this Colonel
20 Doe. So I think the Government was sort of reaching a little
21 bit in trying to suggest that we are manufacturing anything.
22 And I never have seen the Government try even to claim in
23 this case that Colonel Doe does not exist.
24 And, remember, Your Honor, at the beginning of this
25 when we were first asked by Judge Schiavelli to name somebody
35
1 by name, we suggested to the Government that we would name

2 Colonel Doe by name if the Government would agree not to take
3 action against him, and the Government declined.

4 THE COURT: Right. I understand that.
5 MR. WOODS: We are in that position because of the
6 Government's refusal to agree to that process that we had
7 suggested.
8 MR. FREEBORNE: Your Honor, what we were arguing,
9 and it's based upon the Meekins' declaration, is that they
10 decided to bring this lawsuit and then they were trying to
11 enlist as members service members within the Armed Services

12 who are not members.
13 THE COURT: Right. But you're not contending that
14 Colonel Doe does not exist?
15 MR. FREEBORNE: No, Your Honor. Although the
16 declaration does have some discrepancies in that regard when
17 it talks about Colonel Doe and then it talks about him as an
18 enlisted service member as opposed to a commissioned service
19 member.
20 THE COURT: I wondered about that. I'm not
21 entirely familiar with the difference between those terms,
22 but familiar enough. You can enlist and be an officer. I
23 mean, only you're commissioned when you're an officer.
24 MR. FREEBORNE: Your Honor, but our primary concern
25 is the concern that was identified in the
36
1 Washington Legal Foundation case. A proper associational

2 plaintiff should have a membership that has been harmed in
3 whatever way you're now seeking to base your challenge upon.

4 You should have an existing membership. That's why you have
5 associational standing. You shouldn't have an entity like
6 Log Cabin Republicans challenging the constitutionality of a
7 duly enacted statute and then trying to get members to
8 support your lawsuit. That's not the way it's supposed to
9 work.
10 And so when I make the point, that's related to the
11 facial challenge point. I'm not saying that they're

12 sinister. I'm just saying that the Court should be careful
13 when it exercises its Article III powers to ensure there's a
14 case for controversy. And facial challenges --
15 THE COURT: I understand your point about facial
16 challenges. You've cited your authorities on that point.
17 And I think I understand better your position with
18 respect to identity of the Doe member in this case.
19 All right. I'm going to take a recess so I can
20 take care of this status conference in my other case and then
21 we'll continue on at about 3:40. Thank you.
22 (Recess)
23 THE COURT: All right. Let's turn to the next
24 issue which is partly an issue connected to the standing
25 issue and partly an issue that is related to the merits. And
37
1 that is the argument that the Government raises about whether

2 as to Colonel Doe -- I'm sorry, let me find it in my notes
3 here. That as he has never been discharged and, as the

4 Government argues, the "Don't Ask, Don't Tell" policy has
5 never been applied to him, the Government argues that his
6 asserted harm is based on a future possible conjectural or
7 hypothetical application of the policy; and therefore, this
8 doesn't satisfy the standing requirements of a concrete and
9 actual or imminent injury.
10 The cases that the Government cites in support of
11 this argument, the two primary cases the Government cites are
12 the Vermont Agency of National Resources v. Stevens, which is
13 a qui tam case where in general the Court addressed the type
14 of injury a relator suffered in order to satisfy the first
15 element of the standing inquiry, but that case really is so
16 factually distinct from our case, I don't find its analysis
17 to be that helpful.
18 The Gange Lumber case also cited by the Government,
19 the 1945 case, which deals with the State of Washington's
20 change in the administration of that state's industrial
21 insurance program, apart from a reiteration of the general
22 principles of standing, which aren't really in controversy,
23 that case, too, is not particularly helpful.
24 Both sides argue a bit about the -- or rely to a
25 certain extent, argue the impact of the City of L.A. v.
38
1 Lyons, which originated in this District but is a United

2 States Supreme Court case. That's the choke hold case which
3 does deal with the issue of whether the plaintiff satisfied

4 the requirement of showing a concrete particular imminent
5 injury. And so while it talks about whether the plaintiffs
6 who were added -- no, I'm sorry, there weren't plaintiffs
7 added in that case.
8 That was the case where the plaintiff filed suit
9 because he was arrested after a traffic violation subject to
10 the choke hold applied by an LAPD officer which injured his
11 larynx and then sued to prevent future such injury. The

12 Supreme Court held that there wasn't really a danger of such
13 an incident happening again; that is, that he be arrested for
14 a minor traffic violation, and according to the allegations
15 in the complaint, immediately subject to -- even though he
16 wasn't resisting, according to the complaint, being subject
17 again to a choke hold, because among other things, there had
18 been 15 deaths from choke holds in the meantime and the LAPD
19 had changed its policy. But all of the other facts involved
20 also made it conjectural.
21 That case is just so dissimilar from ours that -- I
22 didn't think any of the -- neither side really cited the line
23 of cases that I was looking for, that I thought were the line
24 that would be similar factually and persuasive, which would
25 be cases where somebody was threatened with prosecution or
39
1 thought they faced imminent prosecution.

2 So I found a number of cases that I think are
3 either closer factually or provide such a contrast that they

4 aluminate the problem that the defense is pointing to here.
5 First, Babbitt v. United Farm Workers, which is
6 442 U.S. 289, which first sets forth the principle that a
7 plaintiff who challenges a statute must demonstrate a
8 realistic danger of sustaining a direct injury as a result of
9 the statute's operation or enforcement. And it relies on
10 O'Shea v. Littleton, which I think the Government did cite
11 here. But it goes on to hold that one does not have to await
12 the consummation of threatened injury to obtain preventive
13 relief. If the injury is certainly impending, that is
14 enough. And there is various other cases that are cited.
15 I think that's exactly the situation here where
16 the -- it's certainly impending; that is, initiation of
17 separation proceedings, if Colonel Doe announces his sexual
18 orientation. In fact, in the merit section of the moving
19 papers in the Government's careful discussion of the policy,
20 both the findings that support it and the policy itself, a
21 statement that one is homosexual is grounds for initiation of
22 separation proceedings.
23 So I don't think that the Government's position
24 here that it's conjectural or hypothetical that the "Don't
25 Ask, Don't Tell" policy would be enforced is well-taken.
40
1 There's a policy, it's enforced, and the injury to a member

2 of the Armed Forces while serving, that it's simply not
3 conjectural or hypothetical.
4 There are a number of other cases and one the name
5 of which I thought I had in my notes, but I don't. It
6 involved -- I think it was a Ninth Circuit case which
7 involved someone who was passing out handbills and was
8 challenging the ordinance that forbade that. He was warned
9 specifically by a police officer that if he was caught doing
10 it again, he would be arrested. His companion who was also
11 handing out handbills was arrested. And the Court held that
12 that was enough to show standing and that was a facial
13 challenge.
14 So I think that that is certainly -- that's
15 probably as close factually as we could find. So I'm not
16 persuaded by the Government's argument. That's pretty much
17 the last argument that we haven't addressed here on standing.
18 Do you want to respond, Mr. Freeborne?
19 MR. FREEBORNE: Your Honor, the phrase that you
20 referenced in the Babbitt opinion mirrors that in the Lyons
21 decision which isn't pending. If Colonel Doe is to be
22 believed in his declaration, he has served for over 20 years
23 without being subject to the policy. He alleges that his
24 speech has been chilled, but Your Honor has already
25 dismissed that aspect of their First Amendment claim. So now
41
1 we're left with his potential discharge. And our argument is

2 that because he has served, any threatened separation is
3 inherently speculative. It is not imminent or impending as

4 the term is used in the Babbitt decision.
5 And as Your Honor is aware, the O'Shea case is
6 referenced in Lyons, so that analysis is subsumed within the
7 Lyons analysis. That analysis is important here because what
8 plaintiff is seeking to do is to enjoin the enforcement of a
9 federal statute in seeking declaratory injunctive relief,
10 which Lyons speaks to and points to the heightened showing
11 that must be provided in that context, as does the

12 Hodgers-Durgin case that we cited.
13 THE COURT: But if this is not a case where, as in
14 the language I just read to you, one doesn't have to await
15 the consummation of threatened injury to obtain preventive
16 relief, but one who challenges the statute just has to
17 demonstrate a realistic danger of sustaining injury, if this
18 isn't that case, what would be the case? I mean, there's a
19 policy the Government has stated. The policy exists. It's
20 the Government's duty to enforce it. So if this is not such
21 a case, how could there be a case where there is a more
22 direct danger of concrete, impending injury?
23 MR. FREEBORNE: Well, Your Honor, with respect to
24 the statements analysis, Your Honor is aware that the service
25 member can rebut the presumption as it relates to that
42
1 statement. There's a whole discharge proceeding that would

2 have to occur before the service member would have to be
3 discharged.
4 THE COURT: But the initiation of the discharge --
5 I mean, I think -- is your argument that the initiation of
6 the discharge itself is not an injury?
7 MR. FREEBORNE: Well, Your Honor, our argument is
8 that the fact that that would occur, given that Lieutenant
9 Colonel Doe has served for over 20 years, is inherently
10 speculative and it's not imminent or impending as the case
11 law had said.

12 THE COURT: Well, Ms. Witt had served for
13 approximately 20 years, so the length of service doesn't seem
14 to -- and yet the -- I think her branch was the Navy, but
15 they initiated separation proceedings against her. So if
16 your argument is that once somebody has served a certain
17 number of years, they're less likely to initiate separation
18 proceedings, the reported cases have no support for that
19 proposition.
20 MR. FREEBORNE: Your Honor, the difference here is
21 they're seeking declaratory injunctive relief, which again,
22 Lyons speaks to, and it was not at issue in the Witt case.
23 THE COURT: But your argument -- if I understood
24 your argument correctly, you seem to be saying, well, he
25 served for 20 years so they're not likely to initiate
43
1 separation proceedings. There just doesn't seem to be any

2 support for that proposition.
3 MR. FREEBORNE: Our argument is it's inherently

4 speculative and should not be the basis for awarding
5 declaratory injunctive relief, and they do not have standing
6 to pursue that claim. That's our argument.
7 THE COURT: How is it speculative?
8 MR. FREEBORNE: Again --
9 THE COURT: There is a policy. The Government
10 enforces the policy. So how is it speculative that
11 separation proceedings would be initiated?

12 MR. FREEBORNE: Your Honor, again, his conduct.
13 He, by his own admission, has served many years without being
14 subject to the policy. And any harm that would result from
15 the policy is inherently speculative. I'm not sure how much
16 I can add to the analysis, but that's our argument. It's
17 much like the stop case in Hodgers-Durgin where the
18 individual there was allowed to cross the border without
19 incident, and here he's served for many years without being
20 discharged.
21 THE COURT: Well, according to the policy, which is
22 Sections 654(b)(1), (f)(3)(A)-(B) of Title 10, the defendants
23 may initiate separation proceedings if a service member
24 engages in a homosexual act, which is further defined as any
25 bodily contact actively undertaken or passively permitted
44
1 between members of the same sex for the purpose of satisfying

2 sexual desires; and any bodily contact which a reasonable
3 person would understand to demonstrate a propensity or intent

4 to engage in an act described in subparagraph (A), and such
5 acts include holding hands and kissing, which is found in the
6 regulations at 1332.14 at E3.A41.2.4.1; or, just to give a
7 couple of examples, or the defendants may initiate separation
8 if the service member makes a statement that he or she is a
9 homosexual or words to that effect.
10 So I've been quoting from two parts of the policy.
11 The Government -- I don't mean to keep repeating myself. The

12 Government enforces the policy, so if -- I'm really having a
13 hard time understanding your argument that the harm -- the
14 injury, that is, that he be subject to what's called
15 separation proceedings, that is, he be discharged, isn't the
16 concrete and particular and imminent injury. The fact that
17 he has served 20 years, that's sort of irrelevant.
18 MR. FREEBORNE: Well, Your Honor, in any case, he
19 has not been the subject of the policy. He has served
20 without incident. It makes it just like the stop cases that
21 we've cited and the choke hold case.
22 THE COURT: He has been the subject of the policy.
23 MR. FREEBORNE: He has not been the subject of
24 discharge proceedings because he has operated within the
25 confines of the statute. And so to use him as a basis to
45
1 seek declaratory injunctive relief is improper under Lyons,

2 Hodgers-Durgin and the other authority that we cited.
3 THE COURT: Do you wish to respond?

4 MR. WOODS: Yes, Your Honor. Thank you.
5 Colonel Doe has been injured every day of his
6 service under "Don't Ask, Don't Tell." He is not allowed to
7 express his core identity. He is not allowed to engage in
8 the type of private consensual conduct that he might wish to
9 engage in. And he's not even allowed to participate, as he
10 ought to be allowed to participate, in this case. So he has
11 been injured every day.

12 There is no legal requirement, as the Government
13 would like to suggest, that he must be discharged before he
14 could have standing to sue. If you take the Government's
15 argument to its natural end, then no current member of the
16 Armed Forces could challenge this statute prior to being
17 discharged. No one. The thousands and thousands of our
18 Armed Forces, they would argue, no one could challenge it
19 because you haven't been discharged.
20 And then, Your Honor, here's what they would do
21 next, as they did in this case before when we put in Mr.
22 Nicholson to the case initially. They then argued that,
23 well, Mr. Nicholson has been discharged; therefore, he can't
24 be the person who represents those people who are currently
25 serving. So they want to have it both ways and they can't
46
1 have it either way. The position just doesn't make sense,

2 Your Honor. There's no case they've cited to you that says
3 the only injury that counts in this context is discharge.

4 Assuming that we're right in our constitutional law
5 analysis of this case, Colonel Doe's rights have been
6 violated every day that he has been in the service since
7 "Don't Ask, Don't Tell" was enacted. And that's the point
8 we're trying to make, that he has been injured.
9 And, again, going back to the burden issue, and
10 again, there is at least, Your Honor, a genuine issue of
11 material fact about this that precludes summary judgment.

12 THE COURT: Well, I mean there's at least two ways
13 of looking at what the injury is, and they're not necessarily
14 mutually exclusive. But one of the injuries, going back to
15 the argument you made just a moment ago, your argument is
16 that the Government is trying to have it both ways. At least
17 one of the injuries is the discharge, the separation
18 procedure. So if Colonel Doe is identified, then he would be
19 subject to -- according to the regulations and the statute
20 that I've read, he would be subject to discharge under the
21 policy.
22 MR. WOODS: Correct. So that's a real risk of
23 injury to him. That's not speculative. It's not
24 conjectural. It's real. And, again, we tried to avoid that
25 by offering to stipulate with the Government that he would
47
1 come forward and identify himself by name as long as no

2 discharge proceedings were brought, and the Government
3 refused to do that.
4 THE COURT: But your argument, in the alternative,
5 is that there's another sort of injury that he suffers by
6 virtue of the policy, but that's different from the standing
7 injury, in a sense.
8 MR. WOODS: I'm not sure it is, Your Honor. I mean
9 he has been injured by "Don't Ask, Don't Tell" even though he
10 hasn't been discharged. He's been injured, as he stated in
11 his declaration, because he desires the same right to

12 communicate the core of emotions and identity to others as
13 granted to heterosexual members of the United States Armed
14 Forces. In other words, he has to every day live a lie about
15 who he is, and that's an injury. That gives him standing to
16 bring a due process claim in this case.
17 THE COURT: But the other type of injury that we've
18 been discussing, that is, the danger of discharge, is
19 sufficient --
20 MR. WOODS: Yes.
21 THE COURT: -- as for a standing purpose.
22 MR. WOODS: Yes, it is. And he's very concerned
23 about this risk by even the minimal participation that he's
24 been involved in in this case. He's very concerned about the
25 fact that we've now told you that he is a lieutenant colonel,
48
1 he's been in the Army Reserves for 20 years, he just got back
2 from Iraq. He's very worried that the Government is trying
3 to find out who he is so that they could discharge him. So

4 we think, Your Honor, for all the reasons you've already
5 articulated that there is standing, and, of course, there are
6 no genuine issues about whether standing exists.
7 THE COURT: All right. Let me last focus on some
8 of the issues regarding the timing of -- well, let me start
9 with focusing on the evidentiary problems.
10 As I said, I did not have a chance to review the
11 plaintiff's filing this morning on the evidentiary problems,

12 but before -- I haven't even looked at it, but before I
13 decided that there was this threshold issue of standing in
14 reviewing the motion, there were -- so I'm not even sure what
15 I'm about to articulate as to the evidentiary deficiencies in
16 the Government's moving papers are the subject of the
17 evidentiary objections or whether my focus on the evidentiary
18 deficiencies in the Government's moving papers are different
19 ones than the plaintiff has objected to.
20 But the moving papers in this case, to my
21 recollection, almost none of the exhibits that were submitted
22 in support of the moving papers could be considered by the
23 Court. They are not authenticated by a declaration of
24 counsel to the extent that they could be so authenticated.
25 The exhibits attached to the appendix of exhibits
49
1 that are or purport to be excerpts of deposition transcripts

2 do not bear the necessary certificate of the court reporter.
3 Those can't be authenticated by a declaration of counsel.

4 They have to have the certification of the court reporter.
5 And there's a number of cases that set forth that
6 requirement. Orr v. Bank of America is the case most that I
7 usually cite in my orders with respect to that. So I would
8 not be able to consider any of the deposition transcripts.
9 And to the extent there's an objection that's been filed, I
10 would sustain that objection.
11 There's no declaration of counsel authenticating

12 the other exhibits, so -- let's see. The first four exhibits
13 are deposition transcripts. The fifth one is an e-mail.
14 That would take a declaration of counsel, but I'm not --
15 that's the one about being an honorary versus a dues paying
16 member. So that's not authenticated and it's not a
17 self-authenticating document.
18 Exhibit 6, again, it's not a self-authenticating
19 document, but I think both sides have relied upon that
20 document. That's the letter from Mr. Nicholson. I think if
21 both sides have relied upon it then that might be
22 admissible.
23 And Exhibit 7 is the letter from Mr. Nicholson's
24 attorney, Mr. Cleghorn. I think the same thing applies. I
25 think both sides have relied on that. If I'm correct about
50
1 that, then Exhibits 6 and 7 could be considered, but the rest

2 of them couldn't be, which would affect the extent to which
3 the Court could consider some of the arguments raised in the

4 moving papers.
5 And as to the first four, even without an objection
6 from the other side, the case law is clear that the Court
7 should not consider the deposition transcripts without a
8 court reporter's certification. So that especially affects
9 the Court's ruling on the substance of the motion, the merits
10 of the motion, as to the substantive due process claim.
11 There's certain portions of -- well, to a large extent, that

12 would affect the Court's ruling on the substantive due
13 process claim.
14 If I'm correct in my recollection that Exhibit 6, I
15 think it's 6 and 7, the letters regarding Mr. Nicholson,
16 were relied on by both parties, then the Court could consider
17 those. And those have more of an effect on the First
18 Amendment claim.
19 Do you wish to be heard on that issue?
20 MR. FREEBORNE: Your Honor, with respect to the
21 depositions, as you know, we were up against the discovery
22 deadline. We did lodge all of the depositions that we had at
23 the time of the filing with the Court.
24 THE COURT: Have the originals been lodged?
25 MR. FREEBORNE: Yes.
51
1 THE COURT: Then that would cure that.

2 MR. FREEBORNE: And with respect to the letters,
3 Mr. Hunnius and I have had communications about -- we

4 actually, given that they were produced by the plaintiff --
5 THE COURT: I don't think there's an issue.
6 MR. FREEBORNE: I just wanted to address them
7 both. With respect to -- we also did reference articles of
8 incorporation in our reply brief, and that was certified to
9 by Secretary of State --
10 THE COURT: Those are self-authenticating once
11 you've got the certification.

12 MR. FREEBORNE: With apologies, we weren't trying
13 to run afoul, given the time for the depositions, and we have
14 lodged all the depositions that we had at the time of filing.
15 THE COURT: When did you lodge the depositions?
16 MR. FREEBORNE: Your Honor, I could find the day.
17 I don't have it handy right now. It was before we filed. It
18 was in accordance with whatever the rules say. I forget the
19 time frame.
20 But to be clear, we also had a read and sign issue
21 given that most of the depositions were taken late in the
22 day. So, again, Mr. Hunnius and I have discussed that.
23 THE COURT: If you lodge the originals, then that
24 takes care of the certification issue.
25 MR. FREEBORNE: Very well. Thank you.
52
1 THE COURT: Then let's turn lastly to the combined

2 issues of the trial date. I'm thinking, unless either side
3 -- I don't think I need any more briefing on the standing

4 issue.
5 On the merits issue, whether the parties want to
6 come back and argue the merits, the only real issue that I
7 would -- I'm not sure whether more argument is necessary.
8 You could argue it briefly this afternoon. But if I were
9 inclined to -- having reread Witt and read everything that
10 the parties have submitted in connection with the substantive
11 due process claim, to hold that -- given that in Witt there

12 wasn't a facial challenge as there is here, I mean there
13 wasn't one even brought. It's not as though one was brought
14 and dismissed by the court. The only challenges brought in
15 Witt were an equal protection claim, a substantive due
16 process claim, and a procedural due process claim. There was
17 no facial claim brought.
18 And, of course, what the Witt court held was that
19 Philips v. Perry and some of the earlier Ninth Circuit
20 holdings, which held that the most deferential standard of
21 review applied, were no longer good law on the standard of
22 review after the Lawrence case. So, in a sense, one could
23 look at Witt and say that the language in the Witt opinion
24 about a different standard of review, and I quoted that
25 language in the order on the motion to dismiss, would be
53
1 better considered as dicta because, as I just said, there

2 wasn't a substantive -- there wasn't a facial attack being
3 considered by the court.

4 So if I was to reconsider that ruling and hold what
5 I would call the Witt standard, something more than the most
6 deferential standard of review applied, let me ask the
7 Government. First, does that change -- I mean, you've argued
8 in your papers that the policy withstands the deferential --
9 an attack based on the most deferential standard. Does it
10 change your position if the Witt standard applies, which is
11 kind of loosely defined as something more than the most

12 deferential standard?
13 MR. FREEBORNE: Well, Your Honor, I'm a little
14 confused because Your Honor ruled in June of last year the
15 rational basis governs this case because this is not the
16 as-applied challenge that was presented in Witt. So just
17 understanding Your Honor's question, are you now changing
18 your ruling or thinking about changing your ruling?
19 THE COURT: Yes.
20 MR. FREEBORNE: Your Honor, we believe we can
21 satisfy heightened scrutiny, but we have proceeded and
22 argued, of course, based upon the rational basis test that
23 was enunciated in the Court's June 9th decision. We don't
24 believe it changes the Salerno test, which is, we need only
25 point to one conceivable constitutional application in this
54
1 case. And we believe Philips is still good law on that, and

2 that Congress could have, back in 1993, made the
3 determinations that it did. As Your Honor is aware, we've

4 also relied upon the Western case which instructs that the
5 Government -- Congress could have concluded back in 1993 that
6 the policy was necessary for military effectiveness.
7 That said, we believe we would also win under a
8 Beller-type analysis. And we don't believe that Beller was
9 disturbed in any way by the Witt decision. We would take
10 issue with the Court. We don't believe that Philips was
11 overturned by Witt, but I think we've had that discussion in

12 the past. But we do believe we could win under Beller and
13 the test and substantive due process analysis that was set
14 forth there by Judge Kennedy. And we believe that that
15 analysis is particularly instructive here given that Judge
16 Kennedy became Justice Kennedy and issued the Lawrence
17 decision, and said pointedly that this is just a different
18 sphere, that this is the military sphere and the courts are
19 to defer to military judgment and Congress's judgment in
20 exercising its constitutional authority.
21 So, again, we believe we would prevail under either
22 standard. We have been proceeding along the lines that were
23 set forth on the Court's June 9th decision order.
24 THE COURT: Let me ask you. There was something in
25 particular -- my color coding system has failed me. I
55
1 thought I had a green tab on the particular language I wanted

2 to ask you about to follow up on that.
3 In your moving papers, and let me give you some

4 context, this is when you're discussing the policy and the
5 background to its adoption in the hearings and so forth. I
6 recall the legislative history of it. You go on to talk
7 about these 15 legislative findings that, of course, you urge
8 the Court to apply deference to, but there's a quote that you
9 include from the Senate Armed Services Committee. If you
10 have your papers there, it's on page 5 of the points and
11 authorities starting at line 15 --

12 MR. FREEBORNE: Yes, Your Honor.
13 THE COURT: -- about sexual behavior. Among both
14 heterosexuals and homosexuals sexual behavior is one of the
15 most intimate and powerful forces in society. I won't go on
16 to read the whole quote, which is kind of lengthy, but the
17 finding goes on to say, basically, that there's no
18 presumption that the military has -- I would sort of
19 characterize it as a matter of common sense -- in dealing
20 with adults there's no presumption that everyone is going to
21 remain celibate. The bit about common sense, that's my
22 editorializing. It says, "When dealing with issues, the
23 Armed Services do not presume that service members will
24 remain celibate."
25 But the language in particular that I think is
56
1 important that I wanted to ask you about in connection with

2 all of this quote here is about the -- I would almost call it
3 sort of an admission on the part of, for these purposes, the

4 Government about the importance of this, because in terms of
5 thinking of what the standard of review here is, when courts
6 determine what standard of review to apply, one of the --
7 well, let me start over a little bit.
8 In looking at, you know, what was first a
9 deferential standard and then the strict scrutiny and then
10 there was an intermediate standard, I think what the Witt
11 court enunciated was somewhere between the most deferential

12 standard and the intermediate standard. But, in any event,
13 in all of the standards of review that courts have enunciated
14 in looking at constitutional issues, one end of the balance
15 is the right that's being considered. And here what we have
16 is this language about one of the -- pointing to one of the
17 most intimate and powerful forces in society.
18 So, I guess my question is, on the one hand what is
19 being considered here is, it is conceded to be something that
20 is so crucial and important at the same time the Government
21 is saying we have to -- and we're admitting that we're not
22 going to presume that adults are going to just forswear that
23 important part of human life. Then doesn't that sort of cut
24 against the Government's position in this case, that a
25 deferential standard of review should apply?
57
1 MR. FREEBORNE: Your Honor, it's a good question.

2 What this instructs the Court about is the fact that this is
3 a conduct-based policy, and what Congress's determination

4 back in 1993 was, that the same forces that dictate this
5 policy exist within the genders. And we've recognized, for
6 example, with men and women, as we've discussed previously,
7 separate accommodations are necessary between men and women
8 to accommodate the sexual tension privacy rationale that
9 we've discussed before. So that doesn't dictate a higher
10 level of review. With cases like Palmore and Lawrence and --
11 THE COURT: You're right it doesn't dictate -- I

12 didn't mean to suggest and maybe I worded the question
13 poorly, because I don't mean -- you're correct. I don't mean
14 to suggest it dictates the standard of review. Within the
15 standard of review that's selected, of course, the right
16 that's being protected is one of the factors that's balanced,
17 would be a better way of articulating my question.
18 MR. FREEBORNE: On that issue, Your Honor, the
19 Court recognized in the equal protection analysis in the
20 June 9th decision that there is no fundamental right to
21 engage in homosexual consensual sex. I mean Lawrence doesn't
22 endorse that. So Your Honor has ruled that there is no such
23 fundamental right. We believe rational basis is the
24 governing standard, because you don't even have active
25 rational basis review in a case like Palmore where the
58
1 exclusive purpose was to single out a particular group based

2 upon status, or in Lawrence where you have criminalization of
3 the behavior, which is not present here. In Cleburne, again,

4 you're singling out a particular group that you don't happen
5 to like.
6 This is a conduct-based policy. And for that
7 reason, that's why courts have universally held, with the
8 exception of Cook, and I'll get to Cook in a second which I
9 think goes back to Your Honor's first question, have found a
10 rational basis review is the appropriate standard.
11 I don't want to fail to mention Cook. In Cook, as

12 Your Honor is aware, that heightened scrutiny was applied
13 there and the policy was found to pass constitutional muster.
14 Even under that standard faced with a motion to dismiss, the
15 First Circuit found that. I just didn't want to leave that
16 out.
17 So, for all those reasons, we believe rational
18 basis review applies; that even the more active form that you
19 find in Romer doesn't apply, because the stated evidence is a
20 conduct-based policy, not a status-based policy. Every court
21 to have considered this statute has so found.
22 THE COURT: All right.
23 Mr. Woods.
24 MR. WOODS: I'm not entirely sure what the original
25 question was, but let me start by talking about the Cook case
59
1 which Mr. Freeborne just mentioned. The Cook case is this

2 First Circuit case. And the First Circuit decided that case
3 after Witt. And the First Circuit in Cook said repeatedly

4 that it acknowledged that it disagreed with. And so it's
5 pointless for a court in this Circuit to talk about the Cook
6 case or rely on the Cook case or even to be guided by the
7 Cook case.
8 We think, Your Honor, that we've briefed this issue
9 and explained or tried to that some more -- some more active
10 review than the lowest possible form of review is appropriate
11 given Lawrence and Witt. It's not altogether clear what the
12 standard should be because Witt did not, as you point out,
13 address a facial challenge. It didn't address it, so it
14 didn't rule on what standard to apply to a facial challenge.
15 But I think there's no reason why the same standard
16 of Witt wouldn't apply or, at a minimum, something in between
17 the Witt standard and mere rational basis review ought to
18 apply. That's because, in part, the importance of the rights
19 that are being effected here, and in part, because that's
20 what the Circuit has done before when faced with this in
21 cases like Beller.
22 I think, Your Honor, also that regardless of what
23 standard is applied, whether it's the lowest possible
24 rational basis standard or some other standard, we have
25 presented enough evidence to show you that there are genuine
60
1 issues of material fact about whether the statute was

2 constitutional when it was enacted, whether what we now know
3 about the statute shows that it wasn't constitutional when

4 enacted, and whether the situation has now changed.
5 We've presented to you an enormous amount of
6 evidence showing that there was no study done at the time to
7 show that the policy furthered its stated objectives. We've
8 shown you that there were studies of foreign militaries at
9 the time. It showed that a ban of homosexuals or homosexual
10 conduct was not necessary to further for purposes of the
11 military to those countries. We've shown you that the policy

12 is disproportionately applied to women. We've shown you that
13 the policy is disproportionately applied in times of peace
14 rather than war, which tells us that it really isn't enforced
15 as it is supposed to be, if that's the purpose of it. We've
16 shown you that and much, much more in our opposition in the
17 four volumes of evidence that we submitted, and as to which,
18 Your Honor, there is no evidence submitted by the Government
19 in response.
20 What's important is the Government submitted some
21 evidentiary objections to some of our evidence. There is no
22 evidentiary objection by the Government to a single piece of
23 our expert's declaration in support of our opposition. And
24 what we filed today, Your Honor, was actually our response to
25 the Government's evidentiary objections filed to our
61
1 materials.
2 Let me mention, Your Honor, the point that
3 Mr. Freeborne suggested again about how you ought to defer to

4 the military. And, again, as we've said, we're not asking
5 you to decide for the military how many tanks to buy or how
6 many missiles to launch, we're asking you to rule on the
7 constitutional rights of citizens of our country. And
8 deference to the military ought not mean abdication of the
9 Court's traditional role in adjudicating constitutional
10 rights. Witt is a good example of that. We cited other
11 cases in our opposition to the Government's motion on that.

12 The Government didn't dispute at all our citation of the
13 Hamdi case, H-A-M-D-I, the Hamdan case, H-A-M-D-A-N. And so
14 there's no doubt this Court ought not defer to the military
15 on important constitutional rights.
16 I continue, Your Honor, to find it curious that the
17 Government is asking you to, again, defer to the military on
18 this, because what the Government's current military leaders
19 are saying is in our opposition papers, not in the
20 Government's papers. And there's no response in the
21 Government's reply to the evidence that we've put forth about
22 the views of the military leaders today. These are
23 admissions against the Government's interest about whether
24 there is or isn't a rational basis.
25 We cited to you Colin Powell's statements in
62
1 February of 2010, that circumstances have changed since

2 "Don't Ask, Don't Tell" was enacted, and the Government did
3 not reply to that.

4 We have President Obama's statements as Commander
5 in Chief that "Don't Ask, Don't Tell," quote, doesn't
6 contribute to our national security, close quote, and, quote,
7 weakens our national security, close quote. And that "Don't
8 Ask, Don't Tell" -- I'm sorry, and that reversing "Don't Ask,
9 Don't Tell," quote, is essential for our national security.
10 Again, there's no response by the Government in its
11 reply papers to these admissions against its interests.

12 The Government also ignored and didn't respond to
13 admissions made by Admiral Mullen, the General of the Joint
14 Chiefs of Staff who said that he was not aware of any studies
15 or any evidence that suggests that repealing "Don't Ask,
16 Don't Tell" would undermine unit cohesion.
17 And Secretary Gates also said that what they need
18 to address in some study that's going on now are assertions
19 that have been made for which we, quote, have no basis in
20 fact. And, again, the Government didn't respond to this. So
21 it's a little curious that the Government would be arguing
22 about deferring to the military when the military is on our
23 side, for lack of a better word.
24 And I guess, Your Honor, it's because the
25 Government's brief and all the cases it cites are out of the
63
1 '90s. What we have here in the Government's motion are Colin

2 Powell's statements from the '90s and people's statements
3 from the '90s as if that's Gospel truth that you must accept
4 and there's no way to challenge a law that is passed because
5 there is some congressional finding that might support it.
6 Your task here is to review whether that was or wasn't
7 rational under whichever standard you decide to employ.
8 You know, the Government is citing Beller in its
9 motion three times and, you know, the Witt court held, quote,
10 we also conclude that our holding in Beller is no longer good
11 law. The Government cites the Holmes case in its motion and
12 its reply, and you have already ruled that the Lawrence case,
13 quote, removed the foundation on which Holmes rested, close
14 quote, and that Lawrence, quote, dissolved, close quote, your
15 words again, the foundation on which Holmes rested. That's
16 from your June 9 order at page 18.
17 The main case cited by the Government's motion is
18 the Philips case. This Court has already ruled that that is
19 an equal protection case and that that makes a difference
20 here, because Lawrence treated equal protection of due
21 process separately, and Lawrence doesn't support the
22 Government's arguments about Philips. You ruled that in your
23 July 24, 2009 order when we were arguing about discovery.
24 You said then, quote, accordingly, the Court does not find
25 that Perry's equal protection holding forecloses relief for
64
1 plaintiff's substantive due process claims.

2 So, I guess, Your Honor, I would say this: We
3 argued a motion to dismiss the due process claim some time

4 ago. What the Government is doing now is basically asking
5 you to review or revisit that decision without any real
6 reason to do that. It's arguing the same points, citing the
7 same cases, and we're right back where we were some time ago.
8 The only so-called evidence that the Government has
9 provided in support of its motion are just a few snippets
10 from testimony from the congressional hearings. That's all.
11 And we have provided you with, you know, a voluminous amount

12 of evidence that we think is admissible, much of which is
13 unchallenged, to show you that there are entities, again,
14 genuine issues of material fact, regardless of which standard
15 you decide to employ.
17 MR. WOODS: I'm happy to answer any other
18 questions, Your Honor.
19 THE COURT: I appreciate that.
20 I think what I'm going to do is to take the motion
21 under submission. If I feel that, and I may, but if I feel
22 that I need to have further argument on the merits, we will
23 notify the parties and pick a date that's convenient for both
24 sides. At this point I don't think I'm going to need to have
25 any further argument.
65
1 As to your trial date, what is the current status

2 of that, even apart from the issues created by the delay of
3 getting a ruling to you on the motion because of this

4 threshold issue of standing? Everything was good for
5 June 15th until last Wednesday when, you know, it's like a
6 series of Dominoes. Everything was great until I had a
7 criminal case that was supposed to start, and I won't give
8 you all the gory details, but there was a little issue
9 between the defendant and his attorney, and as a result of
10 that there is a short -- and it's a case that really is going
11 to go to trial, and so I had to grant a short continuance of

12 that trial which was supposed to start on May the 4th. So
13 it's now starting on May the 18th, which wouldn't be so bad
14 except that because of that, the civil case that was starting
15 behind it, which would have been finished in time for your
16 case to start on June 14th, now has to follow that case. And
17 so by the time I finish that civil case, I probably would
18 have had to continue your case about one week anyway.
19 Let's see. Do I have that right? So I probably
20 wouldn't have been able to start your case until the end of
21 -- I would have had to continue your case about two weeks
22 which is, in fact, out. So, I mean, all of which could
23 change if I'm wrong and the defendant in my criminal case
24 decides tomorrow to plead, but I don't think that will
25 happen.
66
1 So your case was supposed to start on June 15th.

2 Realistically, probably -- so the last of your pretrial
3 documents were due around the middle of May. So if we move

4 your trial -- what are your schedules? I know summer is
5 difficult for people. If you have vacations, speak up. I
6 realize you may have to contact your witnesses and so forth.
7 What I'm looking at for a trial date for you now is probably,
8 oh, about the first week of July.
9 You look pained, Mr. Freeborne.
10 MR. FREEBORNE: I'm blanking on a week. I do have
11 something planned I believe the first week in July.

12 THE COURT: Any time -- I'm going to give you --
13 this is an older case, so I'm going to give you all priority
14 for trial, but if you have plans --
15 MR. FREEBORNE: If I could alert the Court, I just
16 have to check.
17 THE COURT: I'm just letting you know. I'm going
18 to try to set it on a date in July that's good for everyone,
19 so check your witnesses, check your calendars, and --
20 MR. FREEBORNE: Your Honor, can I just be heard?
21 THE COURT: Certainly.
22 MR. FREEBORNE: I'm sorry. We would ask for
23 additional briefing on a few of the standing issues that the
24 Court raised today on the Loux case, McLaughlin and Lujan,
25 particularly the intersection or the comparison between class
67
1 certification and associational standing. We believe that we

2 could afford the Court with --
3 THE COURT: All right. Ten pages, no more than

4 ten pages by a week from today.
5 MR. FREEBORNE: And we would also like to depose
6 Mr. Meekins on the standing issue, and particularly on the
7 transfer issue, which seems to be critical in this case, the
8 transfer of the monies. We're not asking at this juncture to
9 depose Colonel Doe, but we do believe we are entitled to a
10 deposition of Mr. Meekins.
11 And I also have some points on the substantive due

12 process point. I can basically condense them down to, what
13 Your Honor is looking at in this trial is just a replay of
14 1993. The foreign militaries, yes. Congress had before it
15 the comparison between foreign militaries and all of the
16 evidence that plaintiff is going to be providing to you
17 during the course of this trial, which is a replay of 1993,
18 which we believe is inappropriate on a rational basis review.
19 And military judgments are just not susceptible to empirical
20 proof. So the thesis of Mr. Woods' argument, the plaintiff's
21 argument, is that because this policy is not somehow
22 susceptible to empirical proof, it's necessarily invalid.
23 THE COURT: I think that's been briefed. I think
24 you've --
25 MR. FREEBORNE: I was trying to condense it, but I
68
1 did want to be heard on that issue, because we believe very

2 strongly that, A, this type of review is inappropriate, but,
3 B, it's just a replay of 1993, and the appropriate place to

4 consider this policy is within the political domain, not in
5 this court.
6 THE COURT: Well, if you want to include that
7 within your ten pages, you may. I think you've briefed it.
8 I think both sides have briefed it, but you can argue it
9 further, if you wish, in a supplemental briefing. Both sides
10 may file a supplemental brief by a week from today.
11 Now, as to the deposition of Mr. Meekins, let me

12 think about that.
13 MR. FREEBORNE: Mr. Woods has said it's a genuine
14 issue of fact. We seek to explore that issue of fact.
15 THE COURT: This case is being tried to the Court,
16 so I'm not inclined to -- well, it goes without saying this
17 case -- I mean, on the one hand, every case is unique and has
18 to be looked at uniquely. On the other hand, this case has
19 to be treated in a procedural fashion like any other case.
20 After a summary judgment motion and after discovery is cut
21 off and if a triable issue of fact has been shown to exist,
22 there isn't discovery about it. It's over. So, I'm not
23 inclined to -- assuming that I deny the motion, I'm not
24 inclined to allow further discovery on that issue. I'll
25 think about that, but I'm not inclined to allow further
69
1 discovery, especially given that this is a case that's going

2 to be tried to the Court.
3 MR. FREEBORNE: Your Honor, all we're asking for

4 is, if this issue is going to be tried before the Court, that
5 we properly prepare for trial by being allowed to depose a
6 witness that was not identified by plaintiff in their 26(f)
7 disclosures. We would seek to depose Mr. Meekins on this
8 critical issue, this threshold issue.
9 THE COURT: I know what you're asking. I
10 understand what you're asking. I'll consider that, but it's
11 unlikely I'm going to allow it. Well, it's unlikely I'm

12 going to allow it. There might be other limited discovery
13 that could take place, such as written interrogatories, very
14 limited written interrogatories that I'd consider. A
15 deposition by written interrogatories, something like that.
16 I'll consider the request.
17 All right. So the parties should confer about a
18 trial date sometime in -- the earliest possible date in July
19 that the parties can agree upon that's satisfactory to your
20 schedules and to your witnesses. And you might submit a
21 couple of dates that are mutually agreeable. And then I will
22 give you notice of the continued trial date and pretrial
23 conference date.
24 MR. WOODS: How would you like us to communicate
25 that to Your Honor?
70
1 THE COURT: By virtue of a stipulation. If you're

2 not able to agree, then at least set forth what the
3 difficulties are and what your first, second, and third

4 choices are, I suppose, in writing.
5 Thank you very much.
6 The motion will stand submitted as of a week from
7 today when your briefs are due.
8 (Proceedings concluded)
9 ---o0o---
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C E R T I F I C A T E
DOCKET NO. CV 04-8425 VAP
I hereby certify that pursuant to Section 753,

Title 28, United States Code, the foregoing is a true and
accurate transcript of the stenographically reported
proceedings held in the above-entitled matter and that the
transcript page format is in conformance with the regulations
of the Judicial Conference of the United States.
/S/ Phyllis Preston

PHYLLIS A. PRESTON, CSR DATED: May 18, 2010
Federal Official Court Reporter
License No. 8701
1
3 EASTERN DIVISION
4 - - -
5 HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
6 - - -
7 LOG CABIN REPUBLICANS, )

)
8 Plaintiff, )
)
9 vs. ) No. CV 04-8425-VAP(Ex)
)
10 UNITED STATES OF AMERICA, et al., )
) Pre-Trial Conference
11 Defendants. )
___________________________________)
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13
REPORTER'S TRANSCRIPT OF PROCEEDINGS
14
Riverside, California
15
Monday, June 28, 2010
16
3:27 P.M.
17
18
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20
21
22
23 THERESA A. LANZA, RPR, CSR

Federal Official Court Reporter
24 3470 12th Street, Rm. 134
Riverside, California 92501
25 (951) 274-0844
WWW.THERESALANZA.COM
Monday, June 28, 2010 CV 04-8425-VAP

2
1
APPEARANCES:
2
3 On Behalf of Plaintiff:
4
WHITE & CASE
5 BY: Dan Woods
BY: Earle Miller
6 BY: Aaron Kahn
633 West Fifth Street,
7 Suite 1900
Los Angeles, California 90071-2007
8 213-620-7772
10 On Behalf of Defendants:
11
UNITED STATES DEPARTMENT OF JUSTICE
12 Civil Division, Federal Programs Branch
BY: Paul G. Freeborne
13 BY: Joshua E. Gardner
BY: Ryan Bradley Parker
14 BY: W. Scott Simpson
20 Massachusetts Avenue, NW
15 Room 6108
Washington, DC 20001
16 202-353-0543
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1 I N D E X
2 Page
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4
1 Riverside, California; Monday, June 28, 2010; 3:27 P.M.
2 -oOo-
3 THE CLERK: Calling Calendar Item Number 14,
4 Case Number CV 04-8425-VAP(ex), Log Cabin Republicans versus
5 United States of America, et al. 03:27
6 Counsel, please state your appearances.
7 MR. FREEBORNE: Paul Freeborne on behalf of the
8 United States and Secretary Gates, Your Honor. With me are my
9 colleagues, Josh Gardner, Scott Simpson, Ryan Parker, and
10 Major Patrick Grant. 03:27
11 THE COURT: Good afternoon.
12 MR. WOODS: Dan Woods from White & Case for
13 plaintiff, Log Cabin Republicans. With me are my colleagues,
14 Earle Miller and Aaron Kahn.
15 THE COURT: This matter is on the Court's calendar 03:27
16 for a pretrial conference.
17 And this matter is set to begin trial on July 13th?
18 MR. WOODS: Yes, Your Honor.
19 THE COURT: And we'll start trial that day, in the
20 absence of the unforeseen happening in the meantime. But as 03:28
21 far as I'm concerned, we'll start trial that day.
22 As I recall, there were some issues with counsel
23 about -- and perhaps witnesses, but as I recall, it was mostly
24 counsel -- about trial scheduling. So if we're not able to
25 complete testimony in the four days of that week -- as I 03:28

5
1 recall, one side or the other, or maybe both, had some
2 scheduling problems the following week. Otherwise, I could
3 continue the following week.
4 Am I recalling correctly?
5 MR. FREEBORNE: You are, Your Honor. It was my 03:29
6 scheduling conflict. I was scheduled to take a mission trip
7 with my son. I have arranged for a backup in the event that we
8 go long, if we go longer than four days; so that's been taken
9 care of.
10 The following week, though, is a family vacation that 03:29
11 cannot be arranged around.
12 THE COURT: So you're available for two weeks?
13 MR. FREEBORNE: Yes. With the note that I have a
14 backup plan in place.
15 THE COURT: Because what we could do is pick up -- we 03:29
16 could go for four days, since it's a nonjury trial, and then
17 pick another week if we're not able to finish in four days.
18 MR. FREEBORNE: Your Honor, we note that we've asked
19 for a bifurcation on the standing and then the merits. But I
20 think it might be more efficient for everyone just to push 03:29
21 through, if we are going to go the full length.
22 THE COURT: I think that it wouldn't be a problem
23 finishing in two weeks. And, certainly, one way or the other,
24 you should plan to go on that vacation.
25 All right. Let's take up the motions in limine. 03:30

6
1 I agree with the defense that the government's
2 motions in limine violate my standing order in a couple of
3 respects, although I've read them and I will consider them on
4 the merits.
5 My standing order limits the motions in limine not 03:30
6 only in number, but in subject matter.
7 Also, with perhaps one exception, the motions
8 in limine for this court trial appear to me to be largely
9 unnecessary in a court trial. They're not always unnecessary,
10 but most of what's covered in these motions in limine appear to 03:31
11 me to be unnecessary.
12 Although, to a certain extent, even if they weren't
13 called motions in limine, in some part they raise some issues
14 that we probably ought to take care of in advance of trial.
15 The motion that seems the least necessary is the 03:31
16 motion with respect to the exhibits. And I think for the sake
17 of expedition and in the interest of recycling the paper -- not
18 recycling it for another use, but recycling it for the
19 exhibits, because we'll be using them, of course, at trial to a
20 certain extent -- I'll take up, first, the motion to exclude 03:31
21 the use of the exhibits.
22 What's supposed to happen is -- the way I usually
23 proceed, as to the exhibits, would be to go through a joint
24 exhibit list, and as to what ideally would be a very short
25 number of disputed exhibits, talk about those with counsel at 03:32

7
1 the pretrial conference.
2 There should not be -- and I don't even really think
3 there would be in this case, although I can't really tell for
4 sure -- a very limited -- I can't even believe there would be
5 any documents -- 03:32
6 Is there a joint exhibit list that has been prepared
7 here? Did you file one?
8 MR. FREEBORNE: Your Honor, we have, as you know, a
9 broad-based challenge to the use of the facts or evidence in
10 this case. That's one of the subjects of our motion in limine. 03:33
11 THE COURT: Well, that's common to all three of the
12 motions in limine.
13 MR. FREEBORNE: It is. But I just mention that in
14 that our understanding of the joint exhibit list is obviously
15 to agree upon admissibility. We don't believe that facts or 03:33
16 evidence outside of the legislative history of the statute are
17 at all relevant in this case.
18 We have offered to the other side to introduce the
19 legislative history and agree upon what that consists of, but
20 the other side has been unwilling to do that. 03:33
21 They see a joint exhibit list as for identification
22 purposes only. We don't see that the Court benefits from that.
23 As we understand it, it's for admissibility. The Court
24 deserves to know what the parties agree should be admissible on
25 the first day of trial. 03:33

8
1 THE COURT: Well, it should be both. It's both for
2 identification and admissibility. Because, especially with the
3 number of exhibits here, it would be chaos if I don't have a
4 joint exhibit list.
5 Even if you don't agree on a single exhibit as to 03:34
6 relevance, you're still required to come up with a joint
7 exhibit list and a set of notebooks for the witnesses and
8 notebooks for the Court. We should all be operating under the
9 same set of exhibits, whether or not you agree as to a single
10 one that they will be admitted. 03:34
11 There has to be a joint exhibit list.
12 MR. FREEBORNE: Very well, Your Honor. We'll work
13 with the other side.
14 THE COURT: So that's why I would return to the
15 parties the notebooks that have all of the exhibits. To the 03:34
16 extent that your motion is based on an overarching objection
17 that there are no exhibits other than the legislative history,
18 that objection is overruled. But as a practical matter, there
19 must be a joint set of exhibits. That doesn't mean that you're
20 stipulating to their admission. 03:35
21 I would be extremely disappointed if there are
22 objections as to authenticity.
23 MR. FREEBORNE: Your Honor, we do. And we can walk
24 through those objections with you. We have evidentiary
25 objections. But we still have broad-based issues that need to 03:35

9
1 be resolved in this case.
2 The proper nature of facial challenge. They seek to
3 introduce extrinsic evidence of subjective motivations on
4 behalf of members of Congress, which we believe is
5 inappropriate. 03:36
6 THE COURT: That's properly raised in some of your
7 other motions, and I intend to address those to a certain
8 degree. To the extent that some of the exhibits contain those,
9 the best way, it seems to me, to deal with that issue is --
10 most of those exhibits relate to the testimony of some of the 03:36
11 experts.
12 And I'm not sure I'm going to allow some of that
13 expert testimony. I mean, what comes to my mind immediately
14 when you say there's an objection to the testimony regarding
15 the subjective intent of certain members of Congress, I agree 03:36
16 with the government that for the most -- well, almost entirely,
17 I think such testimony would be objectionable.
18 And although the government didn't frame it this way,
19 at least insofar as the motions in limine were concerned, there
20 is the legislative privilege. I mean, I didn't see that in the 03:37
21 motion in limine, but that's, to me, the privilege that would
22 apply.
23 So the way I conceive it is, an expert can take the
24 witness stand and say -- I think the expert -- I really don't
25 want to jump around; I really want to keep this focus for the 03:37

10
1 moment, on the motion with respect to the exhibits. But just
2 to give you an example -- maybe it was Professor Frank or --
3 MR. FREEBORNE: Professor Frank will testify about
4 the history of homosexual service, as well as the enactment of
5 "Don't Ask, Don't Tell." And his entire theory is based upon 03:38
6 an animus theory.
7 THE COURT: Maybe he's the one I had in mind.
8 Because I remember reading in some of your exhibits on the
9 experts -- I don't know if it's Exhibit 9 -- yes, it was
10 Professor Frank. Right, it was his report. That is what I'm 03:38
11 thinking of.
12 So, for example, if he's testifying on direct, like
13 any other expert, he can testify, Yes, this is what I was asked
14 to do; this is the work I did; this is my research; here are my
15 qualifications; these are the things I relied on, and so forth. 03:39
16 The materials, the research, the third-party sources
17 he consulted, et cetera, all of that is hearsay. So it doesn't
18 come in on direct because it's hearsay. He's entitled to say
19 what he relied on and to describe all of the research he did.
20 But it's hearsay. It doesn't come in on direct. 03:39
21 You can cross-examine about it. If you want to admit
22 it on direct -- you probably wouldn't -- but you can
23 cross-examine on it to your heart's -- well, not necessarily to
24 your heart's content, but you can cross-examine on it. It
25 doesn't come in. You can cross-examine on it, but it's 03:40

11
1 hearsay.
2 It normally isn't even listed. It wouldn't be listed
3 on the exhibit list, because it's not going to come in. It can
4 be marked for identification on the exhibit list, but it's not
5 going to be admitted. So it might appear on the exhibit list 03:40
6 because it may be marked for identification, because you may
7 want to cross-examine on it. Either side may want to
8 cross-examine on something an expert relied upon if they think
9 it's good grounds for cross-examination.
10 So the fact that something is identified on the 03:40
11 exhibit list doesn't even mean it's going to be moved into
12 evidence, much less that it's going to be admitted.
13 But a joint exhibit list is crucial in any case,
14 especially a case with a lot of exhibits, so that we don't have
15 chaos at trial trying to keep straight what documents have been 03:41
16 identified and what documents have been admitted.
17 I didn't mean to jump ahead on the expert motion.
18 But on the exhibit motion, to the extent that it's based on a
19 broad objection to the use of any exhibits other than the
20 legislative history, that motion is denied. 03:41
21 Since I don't have a joint exhibit list and since it
22 is a nonjury trial, I'm not going to try to rule in advance
23 which ones would be admitted and which ones would not be,
24 because I think some of that rule will become clear as I go
25 through the other two motions. 03:42

12
1 But, certainly, much of what the experts rely on is
2 not admitted; it just forms the basis for their opinion. So
3 that motion is denied without prejudice to making individual
4 objections to individual pieces of evidence.
5 Now let's move to the other two motions. 03:42
6 The motion in limine to exclude lay witnesses.
7 The defendants are seeking to exclude the testimony
8 of 12 lay witnesses. I think I have the breakdown correct. If
9 I misstate it, I'm sure one or both sides will correct me.
10 Eight of them are not listed either in initial 03:43
11 disclosures or interrogatory responses, nor otherwise in
12 discovery, according to the defense.
13 The second basis for the motion is that this is a
14 facial challenge; that is, this case represents a facial
15 challenge; so all evidence on the merits beyond the statute 03:43
16 itself and the legislative record should be excluded. And the
17 defense argues that this applies especially to the testimony
18 from the six former servicemembers who are to testify regarding
19 the circumstances of their discharge under the policy, "Don't
20 Ask, Don't Tell."
21 The argument is that testimony regarding the
22 application of the statute to any person is irrelevant, and,
23 finally, that the testimony of all six of them would be
24 cumulative.
25 As to the three 30(b)(6) witnesses, the government 03:44

13
1 argues that some of their testimony is the personal testimony
2 of the witness rather than their testimony as an organizational
3 representative and that their personal views are irrelevant;
4 that is, their personal opinion about whether knowing that a --
5 I think some of them were asked in their depositions -- and 03:44
6 this is the testimony that the defense argues should be
7 precluded -- whether knowing that a fellow servicemember was
8 gay would affect the witness's working relationship with such
9 person or would cause him personal concerns about privacy.
10 In reading the transcript excerpts that were provided 03:44
11 in connection with these two motions, the expert witness motion
12 and the lay witness motion, it appears to me that what happened
13 at times during the depositions is that questions were asked or
14 testimony was volunteered or given in answer to a question
15 that, either in the case of a 30(b)(6) witness, went beyond the 03:45
16 designation, or, in the case of an expert witness, a question
17 was asked of someone designated as an expert witness that went
18 beyond the expert designation.
19 Sometimes I think what was cited was really out of
20 context. Sometimes it was clear to me that what was cited was 03:46
21 really out of context and that witness probably wouldn't even
22 be asked to testify to that at trial.
23 To the extent that it would be elicited, the personal
24 opinion of 30(b)(6) witnesses on a subject about whether
25 knowing a fellow servicemember was gay and how it would affect 03:46

14
1 their working relationship, that's irrelevant. I agree.
2 I thought, though, from the context in which some of
3 those quotes were cited, that -- well, I'll just leave it with
4 I think that would be irrelevant.
5 So the testimony, to the extent that the motion seeks 03:46
6 to bar testimony that would seek a personal opinion from a
7 witness who is designated to speak on behalf of an
8 organization, that would be irrelevant. But, again, it's not
9 really necessary to bring a motion in limine in a court trial
10 on that, because it would probably be more efficient for me 03:47
11 just to rule.
12 Information regarding research and other
13 postenactment developments -- again, this is just 30(b)(6)
14 witnesses -- circumstances allowing -- I think the shorthand
15 term was moral waivers -- and experiences of foreign militaries 03:47
16 allowing -- I think what was called open service by gays and
17 lesbian members. The government seeks a ruling that all of
18 that is irrelevant and not admissible during the trial.
19 So taking up these issues in, more or less, that
20 order, the first one: Was the failure to identify the eight 03:47
21 lay witnesses substantially justified or harmless under
22 Rule 37(c)(1)?
23 The defendants claim that they were denied the
24 ability to depose these witnesses before trial because their
25 names were not disclosed until May 17th and the addresses and 03:48

15
1 phone numbers weren't provided until June 7th. One of the
2 disputes between the parties is whether the general statement
3 in the early disclosures that persons of that general class
4 that is former servicemembers might be called to testify, the
5 government's position is that that doesn't suffice, and, of 03:48
6 course, there is a continuing duty to supplement the early
7 disclosures.
8 The plaintiff argues that it did not know it would
9 call these witnesses until the Court put the parties on notice
10 that it was inclined to adopt the Witt standard of review; and 03:49
11 then, at that point, it immediately notified the government of
12 its intent to call these witnesses and made them available for
13 deposition.
14 The opposition contains a proffer of each witness's
15 testimony and points out that Rule 26 requires disclosure of 03:49
16 the witnesses with knowledge of a party's claims that are known
17 at the time of disclosure.
18 So, in part, the issue comes down to, were the claims
19 known at the time of disclosure or the Court's decision to
20 apply the Witt standard? Does that change the claims? 03:49
21 The Witt standard, of course, being that the
22 government must advance an important government set of
23 restrictions. "The policy must advance an important government
24 interest; the intrusion must significantly further that
25 interest; and the intrusion must be necessary to further that 03:50

16
1 interest."
2 Is that enough to justify, in this case, the
3 disclosure of the witnesses' identities?
4 So the issue comes down to whether the plaintiff had
5 reason to believe that these witnesses' testimony was necessary 03:50
6 or relevant before the April 26th hearing, because that's when
7 I first said that I was inclined to apply the Witt standard.
8 The five factors that the Court is to consider in
9 making this decision about allowing the witnesses to testify
10 are:
11 Was the disclosure substantially justified or
12 harmless, the late disclosure?
13 The defendant knew that the plaintiff was considering
14 adducing this testimony, just in very general terms, since the
15 early disclosures and the interrogatory responses, very general 03:51
16 terms; and they only had the identities for about a month
17 before trial, June 7th, and trial begins -- well, they had the
18 identities slightly early, but only the contact information,
19 names and phone numbers, about five weeks before trial.
20 Is the surprise or prejudice curable? 03:51
21 There are still two weeks left to depose them. They
22 have been available for deposition since May 20th.
23 One fact that the plaintiff pointed out is that the
24 defense had seven lawyers present at the 30(b)(6) depositions.
25 The argument that the plaintiff is making as to this 03:52

17
1 point is that, I guess, given the detailed proffer of what
2 their testimony is going to be and the relatively short
3 depositions that would be needed, the depositions could be
4 taken. There could also be some arrangements -- I mean, I
5 could order, in terms of the schedule of the order of proof, 03:52
6 that they could testify later in the trial, rather than at the
7 beginning, to give the government more time to schedule their
8 depositions.
9 So I'm inclined to deny the motion as to those
10 witnesses and allow their depositions to be taken. 03:52
11 It doesn't seem to me that the depositions would be
12 more than a couple of hours, two or three hours, so I think
13 it's workable.
14 There are three witnesses, Craig Engle, Jamie Ensley,
15 and Martin Meekins, who submitted declarations in connection 03:53
16 with the summary judgment motion issue on standing.
17 It appears that there may no longer be an issue with
18 respect to Mr. Meekins.
19 Has that been worked out?
20 MR. FREEBORNE: Your Honor, the Court has not ruled 03:53
21 upon our request to depose Mr. Meekins.
22 MR. WOODS: The issue was worked out, Your Honor,
23 with respect to Mr. Engle. Because we've agreed that the
24 document that he had authenticated in the declaration would be
25 admissible without objection, we would not need to call him as 03:53

18
1 a witness.
2 THE COURT: Oh. In the motion papers, as to this
3 motion, I think the parties referred to this being worked out
4 as to Mr. Meekins.
5 MR. SIMPSON: No, Your Honor. I believe our motion 03:53
6 said, particularly the reply -- I could refer to the Court to
7 the footnote where this was covered -- it was worked out as to
8 Mr. Engle, not Mr. Meekins.
9 THE COURT: Not Mr. Meekins.
10 MR. WOODS: The government and we agree on this, 03:54
11 Your Honor, of all things.
12 THE COURT: All right. Then I have that name wrong.
13 I'm sorry.
14 So there's no issue as to Mr. Engle.
15 MR. WOODS: Right. 03:54
16 And, Your Honor, our view was that you had already
17 ruled about Mr. Meekins at our last hearing. And that's part
18 of your order about standing. Because that was one of the
19 issues the government raised at the last hearing, and you ruled
20 at the time that the late disclosure, assuming it was late, of 03:54
21 Mr. Meekins was not something that would preclude him from
22 testifying.
23 MR. FREEBORNE: Your Honor ruled on our motion to
24 strike; never ruled on the request to depose Mr. Meekins.
25 THE COURT: I thought I said that -- I'm sorry. I'll 03:55

19
1 look back at the order again.
2 I thought during the hearing that I resolved it by
3 saying I would not allow that deposition to be taken.
4 MR. FREEBORNE: A broader issue is whether you have
5 ruled on standing and whether there are triable issues. I 03:55
6 think both of us believe that you have ruled that there are
7 triable issues.
8 THE COURT: On standing. I issued an order on
9 standing.
10 MR. FREEBORNE: Right. But it's susceptible to a 03:55
11 variety of interpretations. It's unclear whether you have
12 definitively ruled on standing or if you have found triable
13 issues.
14 THE COURT: Well, I guess the answer to that is, I
15 think there is standing. If you wish to continue to challenge 03:55
16 it by challenging the witnesses on standing, I would allow you
17 to do so, to cross-examine. But I think that's a very weak
18 issue.
19 I can't say -- I mean, the motion that was brought
20 was your motion, and you raised standing -- actually, I don't 03:56
21 even think you raised standing; I think the Court raised it
22 sua sponte. I can't remember now.
23 MR. FREEBORNE: That's not correct, Your Honor.
24 THE COURT: No. I'm sorry. You did raise it, but
25 you didn't raise it on the grounds that I raised it. 03:56

20
1 MR. FREEBORNE: That's also incorrect.
2 Our statement of uncontroverted facts said that --
3 and that came in today -- they have not said when John Doe paid
4 his dues to become a member of Log Cabin Republicans.
5 And even if you look at the proposed findings of 03:56
6 fact, they still refuse to say that. And they refuse to come
7 forward with logs, which would seem to be a very simple
8 exercise to substantiate Lieutenant Colonel Doe's standing in
9 this case.
10 THE COURT: And you said I was incorrect. 03:57
11 I think that the accurate history is that, on that
12 motion for summary judgment, what the defense did not raise and
13 the Court raised sua sponte by sending out a tentative ruling
14 shortly before the hearing was first scheduled was the issue of
15 when both Lieutenant Colonel Doe and Mr. Nicholson became 03:57
16 members. That was not an issue that either party had focused
17 on, on the standing issue. The Court raised it.
18 MR. FREEBORNE: Your Honor, with all due respect,
19 that's just not the case. But I don't know if we have to use
20 up time now. We cited Biodiversity. We said that they haven't 03:58
21 established that the time of membership --
22 THE COURT: You don't recall getting the tentative
23 ruling that raised this?
24 MR. FREEBORNE: It certainly raised it, but what we
25 would say is that we raised it in our papers squarely. 03:58

21
1 THE COURT: But not on the timing issue.
2 MR. FREEBORNE: We did on the timing issue. We cited
3 Biodiversity, and we made the very argument as it relates to
4 John Doe and Mr. Nicholson.
5 One point of confusion, as I pointed out in the 03:58
6 summary judgment hearing, was that Judge Schiavelli, when he
7 had this case, required them to identify a member by name; they
8 could only proceed by a named member. So that did interject
9 some confusion.
10 But, Your Honor, we did raise the issue as it related 03:59
11 to Mr. Doe as well.
13 But the problem that I saw was that there wasn't a
14 date specified within the year that the action was filed in
15 connection with the evidence that was adduced by the plaintiff 03:59
16 in opposition to the motion.
17 MR. FREEBORNE: And we raised that issue. I don't
18 know if we --
19 THE COURT: No. Obviously, you're very intent on
20 being correct on this. It's more important to move on. 03:59
21 All right.
22 So I would deny the motion insofar as the lay
23 witnesses are concerned.
24 I'm not persuaded by the arguments raised by the
25 defense, and certainly not by the argument that their testimony 04:00

22
1 would be cumulative.
2 The last of the lay witnesses, the proffer as to
3 that, at least in the order in which the proffers were
4 described in the motion, that's the only one whose testimony
5 might be cumulative. 04:00
6 Otherwise, I don't find the argument that their
7 testimony would be cumulative to be persuasive.
8 And balancing those five factors that I identified
9 under the case law, I don't find that under Rule 37(c)(1) that
10 their testimony should be excluded. 04:01
11 MR. SIMPSON: Your Honor, could I just stick my neck
12 out just for a moment here?
13 THE COURT: I'm going to let both sides argue.
14 MR. SIMPSON: Okay.
15 THE COURT: I just want to make sure I covered all of 04:01
16 the issues on the lay witnesses and finish by saying, as I've
17 already stated on the record, just for purposes of keeping
18 everyone focused on the issue as to the Witt standard. As to
19 the overarching objection about the irrelevance of all of this
20 evidence, it seems to me that the plaintiff's evidence as to 04:02
21 the lay witnesses would be relevant if it goes to, for
22 example -- and this is not the only thing that the plaintiff is
23 proffering it for -- but if it goes to the question of what
24 evidence the legislative branch may have ignored during the
25 legislative process, such as the Crittenden report, for 04:02

23
1 example.
2 So as to the six witnesses who would testify -- well,
3 I think it's only five of those six -- as to the lay witnesses
4 who would testify regarding the circumstances of their
5 discharge, to show that the policy doesn't further its stated 04:02
6 purposes, isn't there some relevance to this testimony as to
7 that issue?
8 In other words, it seems that the government is
9 trying to have it both ways. The plaintiff has to prove, as
10 the government states, that the policy does not further or 04:03
11 advance any legitimate or important governmental objective.
12 That's what the government keeps focusing on, that it's a
13 facial challenge. So the plaintiff has to prove that it
14 doesn't further or advance any legitimate or important
15 governmental objective. Yet, by this motion, all three of 04:03
16 these motions, the defendants are attempting, really, to
17 prevent the plaintiff from putting in any evidence that goes to
18 this element of its case.
19 So with that, do you wish to be heard?
20 MR. SIMPSON: Yes. Thank you, Your Honor. 04:03
21 Those non-30(b)(6) witnesses is what, from my
22 understanding, we're addressing now. And I assume I should
23 address the failure to disclose as well, before going into the
24 cumulativeness of the witnesses.
25 THE COURT: Whichever order you prefer. 04:04

24
1 MR. SIMPSON: Thank you, Your Honor.
2 I won't repeat what was said in the papers. The
3 Court is obviously very familiar with that. But if I could
4 just submit, Your Honor, that apparently what the Court is
5 envisioning is that we would conduct these depositions, if we 04:04
6 choose to do so, between now and the start of trial; or the
7 Court also said we could defer the testimony of those five or
8 six individuals until the latter days of the trial.
9 Apparently, the Court is thinking we could conduct some of them
10 during the trial. 04:04
11 We would submit, Your Honor, that all of that would
12 be highly prejudicial to us in presenting our case and
13 preparing for trial.
14 Although, as plaintiff says, in -- I believe it was
15 two of the 30(b)(6) depositions, there were seven attorneys 04:05
16 present on the side of the defendants, three of those were
17 Department of Defense attorneys, obviously who are there
18 because they are in-house counsel and would not be involved in
19 conducting depositions.
20 I think the core of the problem here is that 04:05
21 plaintiff did not disclose these individuals until after the
22 close of discovery. And what they say, as the Court has said,
23 is that they took care of their duty by simply saying in their
24 initial disclosures that they may rely on the testimony of
25 former servicemembers. But, obviously, that's not 04:05

25
1 identification by name.
2 What they say in their opposition to our motion in
3 that regard is that, well, if we thought that wasn't
4 sufficient, we should have told them so at that time.
5 But then they say in the next breath that it wasn't 04:05
6 until after the hearing in this case on April 27th that they
7 decided to rely on individuals in that regard.
8 So it seems to me that raising it in relation to the
9 initial disclosures would have been fruitless if plaintiff
10 itself had not decided to rely on those individuals until after 04:06
11 April 26th; and they had not decided until later who those
12 people were.
13 And it's not true, Your Honor, that they told us
14 immediately that they were going to do that.
15 In fact, if I'm not mistaken, they did not tell us 04:06
16 until May 17th, when they identified those individuals to us,
17 that they had actually decided that, Yes, we are going to rely
18 on the testimony of former servicemembers. So they did not
19 tell us that immediately.
20 THE COURT: I'm sorry. I think they told you on 04:06
21 May 17th; correct?
22 MR. SIMPSON: Correct. On May 17th, they gave us the
23 names, Your Honor.
24 This next point is --
25 THE COURT: And then you got the contact information, 04:07

26
1 the phone numbers and the addresses, in early June.
2 MR. SIMPSON: Correct, Your Honor.
3 This next point, I guess, is not determinative, but I
4 think it makes the plaintiff's conduct here even more
5 egregious.
6 It was only after defendants pressed the plaintiff to
7 have a pretrial meet and confer that LCR finally provided the
8 names of those five witnesses. We took the initiative to
9 contact them on May 17th, saying, Look, we have to have a
10 pretrial meet and confer. They initially resisted having that 04:07
11 meet and confer at that time. It was only after we pressed
12 them some more that finally they said, Okay, here's our list of
13 witnesses. And, finally, at that point they gave us the names.
14 And, presumably, if we had not pressed them at that
15 time, they would have given us the names even later. 04:07
16 And, obviously, as the Court has said, we are
17 prejudiced because of the inability to depose those people
18 before discovery cutoff.
19 And not having done that, we are hamstrung in the
20 ability to cross-examine those witnesses at trial. And we 04:08
21 would submit, Your Honor, that trying to depose those people at
22 this point, particularly going into the first week of trial,
23 would be highly prejudicial to our ability to try the case.
24 In addition to what the Court has said from our
25 papers, that's our argument on that issue, Your Honor. 04:08

27
2 MR. SIMPSON: I could address now, as well, the issue
3 of the cumulativeness. When we talk about the cumulativeness
4 of presenting testimony of six former servicemembers, I would
5 suggest, Your Honor, that the Court not focus on simply the 04:08
6 cumulativeness. There are basically two areas here.
7 In relation to the former servicemembers, the
8 presented testimony by the former servicemembers ties very much
9 into the whole issue of presenting evidence in a facial
10 challenge; and I think it goes beyond the overall issue on 04:09
11 which the Court has already ruled, denying that aspect of the
12 motion.
13 The plaintiff has said repeatedly that this is a
14 facial challenge. And we cited abundant case law to the Court
15 in our motion, in our papers, that on a facial challenge, the 04:09
16 facts are irrelevant.
17 For example, one court has said a facial challenge is
18 made in a factual vacuum. What they are saying in a facial
19 challenge is, the party is challenging the statute on its face,
20 implying that, aside from the facts, this statute is 04:09
21 unconstitutional.
22 However, the fact that they are now seeking to
23 present testimony, the stories of these six individuals
24 regarding the application of the statute to them, would seem to
25 belie their assertion at the same time that this is a facial 04:09

28
1 challenge.
2 Either it is a facial challenge and it's in a factual
3 vacuum, or if it's not a facial challenge, then, yes, you bring
4 in evidence as to the application.
5 But if it's a facial challenge to a statute, then the 04:10
6 individual stories about its application are irrelevant, and
7 letting that evidence in would be erroneous.
8 Now we go to the cumulativeness part.
9 Our assertion on that is that receiving six
10 individual stories about the application of the statute would 04:10
11 simply compound that error six times.
12 And, finally, Your Honor, one other point on that:
13 The fact that LCR here is relying on associational standing
14 also belies their asserted need for this testimony about the
15 application of the statute. 04:10
16 One of the criteria for associational standing,
17 according to the Supreme Court in the Hunt case, is, quote,
18 "Neither the claim asserted, nor the relief requested, requires
19 the participation of individual members in the lawsuit."
20 If such testimony is not required, then it would seem 04:11
21 that permitting it would be a waste of time. It would make
22 this trial not an efficient trial; it would bring in testimony,
23 evidence, that is not required, that is not needed; and it
24 would sully the record that presumably would go up on appeal
25 with material that would be irrelevant and, again, cumulative. 04:11

29
1 Your Honor, we would submit.
3 Mr. Woods.
4 MR. WOODS: Thank you, Your Honor.
5 I think, frankly, to begin with, the Court is being 04:11
6 very generous with the government in allowing them to argue the
7 merits of these motions in limine in light of the government's
8 most recent violation of your rules about, this time, the
9 number of motions in limine.
10 We did present to you evidence that the government, 04:12
11 in the meet and confer with us, had indicated that the
12 government intended to pursue at least four motions in limine
13 and told us exactly what they were. At least four motions
14 in limine were then crammed into three motions in limine. All
15 of the three motions in limine have numerous categories and 04:12
16 subparts that add up to far more than three. So I think the
17 government is fortunate that you're even considering these.
18 And that's especially true in light of the government's
19 repeated violations of this Court's rules in the past.
20 We did, as you saw, in our opposition to each of 04:12
21 these three motions in limine, detail every prior violation of
22 the local rules and this Court's rules by the government.
23 And you will see, Your Honor, in the three reply
24 briefs filed by the government, there's no response at all to
25 our argument that they had initially thought about at least 04:12

30
1 four motions in limine. There's no response to that point at
2 all. And there's no response at all to our point that this was
3 just the latest of a series or a pattern of local rule
4 violations by the government.
5 But, turning to the merits, counsel really started by 04:13
6 saying he wasn't going to repeat the arguments in the papers.
7 But that's basically what he did.
8 I don't think, Your Honor, that it is highly
9 prejudicial to suggest that the United States of America take
10 five depositions of lay witnesses that could be done in half a 04:13
11 day each. The government may not have seven lawyers today at
12 the counsel table; they only have four. The government has
13 eight lawyers on the caption of this case. The government has
14 had the opportunity to conduct these depositions since
15 May 20th, when we offered them that opportunity. 04:13
16 The government gambled somehow that you would
17 disagree with our position about this and elected not to take
18 those depositions in the time that has passed since May 20th.
19 And I think, again, the Court is being very
20 reasonable and generous in allowing them to take the 04:13
21 depositions now.
22 And I think it's very hard for the government to
23 complain that they are being treated unfairly when you are
24 giving them yet another opportunity to conduct these
25 depositions that they could have already finished if they had 04:14

31
1 just applied themselves diligently since May 20th.
2 The other arguments, Your Honor, that were made by
3 counsel fail because of the Court's inclination to apply the
4 Witt standard.
5 If the Court is applying the Witt standard in this 04:14
6 case, that standard specifies as follows: When the government
7 attempts to intrude upon the personal and private lives of
8 homosexuals in a manner that implicates the rights identified
9 in Lawrence, the government must advance an important
10 government interest, the intrusion must significantly further 04:14
11 that interest, and the intrusion must be necessary to further
12 that interest.
13 That's what the government is going to have to prove
14 at this trial if the Court adopts the Witt standard.
15 The testimony of these former servicemembers, 04:15
16 Your Honor, is not introduced for any purpose other than to
17 show that their discharges are representative examples of how
18 the government is not meeting the Witt standard today or over
19 the past several years.
20 These five or six people, out of over 13,000 people 04:15
21 who have been discharged pursuant to this unconstitutional law,
22 are going to tell very different stories about what happened to
23 them.
24 And you saw that in the declarations that we filed.
25 We filed them, in part, to show you that they were not 04:15

32
1 cumulative, that some were men, some were women, some were of
2 one branch, some were another branch, some were one rank, some
3 were a different rank, and so on; and some were specifically
4 told by their supervisors that their discharge had nothing to
5 do with unit cohesion or troop morale, the stated purposes of 04:16
6 the policy.
7 So that's what this is about. It has nothing to do
8 with undermining or belying our facial challenge to the
9 Constitution. We're not bringing cases on behalf of these five
10 or six individuals. And they are all different and hardly 04:16
11 cumulative.
12 THE COURT: I'm not persuaded that it's cumulative.
13 That's not a concern to me. I think the number that you gave
14 in your papers, if I recall correctly, was 13,400 persons
15 discharged; so five or six in what's going to be a relatively 04:16
16 short case -- I don't think the testimony is going to take --
17 I'm just not concerned about whether the testimony is
18 cumulative.
19 But in order for the testimony to be relevant in a
20 facial challenge, it can't be testimony that is directed 04:17
21 solely -- or it shouldn't be directed at all, but it can't be
22 directed solely to showing how the policy, as applied to them,
23 is unconstitutional.
24 So it has to be relevant to showing how -- as I
25 understand the argument that you made in the papers and the 04:17

33
1 argument that you made just now, their testimony must, as I
2 understand it, be directed to showing how the intrusion -- that
3 is, in this case, the policy -- it goes to the issue of whether
4 the policy significantly furthers the important government
5 interests and whether the intrusion is necessary to further 04:17
6 that interest. So it's a bit of a fine line. But the
7 testimony has to be considered in light of that.
8 It's almost as though, if it was being tried to a
9 jury, I would be instructing the jury they consider it only for
10 those purposes, not to consider it in terms of the effect or 04:18
11 the application of the policy on the individuals.
12 MR. WOODS: Yes, Your Honor. Lots of the facial
13 challenge cases that we have cited to you do involve the
14 presentation of evidence along the way about how that statute
15 has worked in practice. One of the things that seems -- 04:18
16 THE COURT: But not to show that as applied, it's
17 unconstitutional; only to show that the plaintiff meets its
18 burden of showing -- well, succeeding on a facial challenge.
19 MR. WOODS: Right. And I know the government keeps
20 trying to bring up the fact that it's a facial challenge, which 04:19
21 we have not disputed all along; but there is, of course,
22 nothing at all improper about facial challenges.
23 What we've seen in the facial challenges the more we
24 study them, Your Honor, is that the ones that the government
25 cites are the cases where the facial challenge is made 04:19

34
1 immediately upon the enactment of the statute. Immediately.
2 And the cases we're citing are cases where there's a
3 longer-developed record.
4 THE COURT: Slow down, please.
5 MR. WOODS: Sorry. 04:19
6 What I was trying to say, Your Honor, was that some
7 of the cases about facial challenges are cases where the facial
8 challenge is made immediately. And those are the cases where
9 the facial challenge seldom works, because there's not enough
10 record to show whether it's going to work or not. 04:19
11 So the cases we're citing to you are cases where
12 facial challenges have been upheld after trials with evidence.
13 And those cases happened longer than the other cases; they
14 happened at some point years after the enactment of the
15 statute. And that's what this case is. 04:20
17 Well, let's move to the motion with respect to the
18 expert witnesses, where the government is seeking to bar the
19 plaintiff's seven experts. The government characterizes the
20 testimony of these witnesses as testimony that the policy 04:20
21 continues to have no rational basis today and argues that the
22 testimony is inadmissible under Rules 402 and 702 -- that is,
23 it's neither reliable nor relevant -- and then also argues, in
24 the alternative, that if admissible, it should be limited under
25 Rule 403 to one witness per topic, because otherwise it's 04:21

35
1 cumulative.
2 So the seven witnesses are Lawrence Korb -- I'll go
3 through them quickly. I just have a couple of comments about
4 each. I have different concerns about each of them than are
5 necessarily raised in the papers. 04:21
6 As to the motion insofar as it concerns
7 Professor Korb, I don't think it's accurate, at least as I can
8 glean from the expert's deposition testimony that was attached
9 to the motion -- I don't think it's accurate to state that his
10 primary opinion is that the policy is unconstitutional. That's 04:22
11 really a mischaracterization of the transcript of the
12 deposition.
13 I think during the deposition he was asked that, and
14 he gave his opinion, but I don't think that's the primary
15 reason he's being called to testify. 04:22
16 Also, though, keeping in mind, however, that under
17 the federal rules, I don't think that opinion would be
18 admissible. But an expert is allowed to state the ultimate
19 opinion in the case. But I don't think that's why he's being
20 called to testify. 04:22
21 As to -- is it Nathan Frank?
22 MR. WOODS: Nathaniel, Your Honor.
23 THE COURT: Nathaniel. I typed it as "National."
24 And I knew that couldn't be right.
25 Some parts of his opinions, I think, such as the -- 04:22

36
1 what I would characterize as the anecdotal bits, would probably
2 not be admissible.
3 As I said earlier, and I don't want to be repetitive,
4 an expert can testify as to the basis for his opinion if he's
5 got -- and I believe he does have other -- I mean, I believe 04:23
6 he's the expert who is trained as an historian -- he can
7 testify about his analysis of the record.
8 But the thing that I found most troubling about the
9 basis for his opinion is what I believe -- it's been a long
10 time since I looked at this issue, but what I believe is still 04:23
11 called the legislator's privilege; that is -- and I'm trying to
12 stay away from the word "sausage" here. But since a legislator
13 cannot be questioned about the reasons and the motivation for
14 his or her vote on legislation, and there's a privilege to that
15 effect, as I read some -- and I think some of the basis for 04:24
16 Professor Frank's opinion is, I think, based on sort of
17 privileged matter to that same effect. Perhaps not all of it.
18 But to the extent that he is opining that -- I know, for
19 example, some of the material that's included in his report
20 includes testimony that was given to Congress about either 04:25
21 members of the military or former members of the military and
22 others. That's testimony. That's, perhaps, one thing. But
23 his opinion is also based, I believe, on statements that were
24 made during the hearings by members of Congress, such as
25 Representative Dorman, that would go into his frame of mind; 04:25

37
1 that is, Representative Dorman's. That name stood out to me
2 just because he's -- well, he's no longer in Congress, but he's
3 from this area, so it's a name I recognized. But I think there
4 were other members of Congress whose comments were reported
5 too. 04:25
6 So I think it's one thing to analyze and report and
7 form an opinion based on the hearings and the testimony that
8 was given without splitting hairs, but it's another thing to
9 form an opinion that's based on the reasoning of the
10 legislators, because that is privileged. So, to the extent 04:26
11 that his opinion is based on that, I don't think he could state
12 those -- I don't know that necessarily invalidates all of his
13 opinions, but I don't think he can testify about the reasoning
14 of -- well, I'm hesitant to say that he can testify as to the
15 reasoning of, insofar as the record reveals it. 04:27
16 Aaron Belkin, most of the objections as to his
17 testimony go to the weight, for example, regarding the
18 conclusion that getting rid of the policy wouldn't harm
19 military readiness. Most of those objections that were
20 expressed in the motion go to the weight, not the 04:27
21 admissibility. I think his conclusion is based on a number of
22 subconclusions, including that the military suspended discharge
23 proceedings of a large number of gay servicemen and women
24 during the first Gulf War; and that supports his conclusion
25 that getting rid of the policy wouldn't harm military 04:28

38
1 readiness.
2 So the objections to his opinion, again, would go to
3 the weight and not admissibility.
4 As to Robert MacCoun, if I'm pronouncing his name
5 correctly, he's the law professor at Berkeley. I think he has 04:28
6 two fields. Is he also in the Public Policy School? I think
7 he's got two --
8 MR. WOODS: He's a sociologist, Your Honor.
9 THE COURT: Sociologist.
10 So his opinions are really more -- they're not really 04:28
11 legal opinions, but he has various opinions that he offers
12 regarding unit cohesion, task cohesion, and social cohesion.
13 And, again, I think the criticisms of his opinions go
14 to weight and not admissibility; that is, I don't think that
15 they would rise to the level of a true Daubert challenge. 04:29
16 I was just corrected in my last trial by somebody who
17 actually knew Daubert. And it's Daubert. I'm now relieved to
18 know the real pronunciation.
19 As to Professor Hillman at Hastings, I don't really
20 understand what her methodology is. I think that is a Daubert 04:29
21 attack, and so I would ask the plaintiff's counsel to argue as
22 to what methodology underlies her opinions.
23 And then as to Professor Embser-Herbert, her
24 qualifications are impressive, but the impact of the policy on
25 women serving in the military -- I think the government makes a 04:30

39
1 good point, that this is not an Equal Protection -- I mean,
2 there's not an Equal Protection claim here, and so I'm
3 hard-pressed to see how that testimony fits within the
4 parameters of the issues raised in this case.
5 Overall, I would say that given what is required 04:30
6 under Rule 702, that is, if the specialized knowledge would
7 assist the trier of fact to understand the evidence, I think
8 all of the witnesses are qualified.
9 I think the first requirement is satisfied. I'm a
10 little concerned, as I said, about Professor Frank's -- whether 04:30
11 it's based on sufficient facts or data. But for the most part,
12 I don't think that's an issue with any of these witnesses,
13 other than Professor Frank.
14 As to Professor Hillman, I'm concerned as to the
15 second requirement under 702, if the testimony is the product 04:31
16 of reliable principles and methods.
17 So with that, I would ask the plaintiff to address
18 those concerns.
19 Some of the other opinions that the government has
20 objected to, some of the testimony may be admissible for one 04:31
21 purpose here but not another. If a witness holds the opinion
22 that the United States should follow the example of another
23 country, such as Canada, that's not admissible, except for a
24 very limited -- it's not admissible. Such an opinion would not
25 be admissible. Because, as the Government points out very 04:32

40
1 aptly, the issue here is not the wisdom of the policy.
2 If the witness is relying on data of military
3 readiness or the effect on unit cohesion or the other stated
4 purposes of the policy, and they are relying on data from other
5 forces, and the testimony is given in that framework, then it 04:32
6 may be admissible.
7 And then one last issue that was raised as to
8 Hillman's testimony. Hillman is the Hastings professor.
9 Is she also testifying about a disparate impact on
10 female service members? 04:33
11 MR. FREEBORNE: She is, Your Honor.
12 THE COURT: Then I think I've covered that.
13 All right.
14 MR. GARDNER: Your Honor, if I may, can I address
15 some of the points you have raised, or would you prefer me
16 to --
17 THE COURT: You're Mr. Parker?
18 MR. GARDNER: Gardner.
19 THE COURT: I'm sorry. Gardner.
20 All right. Go ahead. 04:33
21 MR. GARDNER: Thank you, Your Honor.
22 I don't want to repeat what Mr. Simpson said, so I
23 won't, but I do want to be clear that regardless of whatever
24 standard of review you ultimately choose -- and to be clear, I
25 think it's made clear in our papers -- the Witt standard simply 04:33

41
1 is inapplicable in a facial challenge. Witt itself says so.
2 But to the extent that this Court disagrees with
3 that, the fact of the matter is, this is a facial challenge.
4 And plaintiff has not cited a case where expert testimony is
5 utilized to support a facial constitutional challenge to a 04:34
6 statute. They simply have not.
7 Remember, Your Honor, in Cleburne, there was a facial
8 and as-applied challenge. The Supreme Court didn't consider
9 factual testimony in terms of invalidating the city ordinance
10 in the facial challenge. In fact, Cleburne went one step 04:34
11 further and said, We are not going to resolve the facial
12 constitutional challenge because those are disfavored, so we're
13 going to look at the as-applied challenge.
14 Lawrence, Your Honor, is also completely inapposite.
15 In Lawrence, the Court looks to facts -- by the way, gleaned 04:34
16 from amicus briefs, not discerned at a trial -- to determine
17 whether or not the logical historical underpinnings of the
18 Bowser decision should be overruled; in other words, should
19 stare decisis be departed from, not whether or not the Texas
20 ordinance that was criminalizing consensual private sex should 04:34
21 or should not be held unconstitutional as a facial challenge.
22 The fact of the matter is, facial challenges are not subject to
23 fact-finding, period. And the plaintiff cannot give an example
24 to the contrary.
25 We, on the other hand, have given multiple examples 04:35

42
1 of where that is the case. But even if we were to get away
2 from that basic principle, that you cannot consider evidence
3 for a facial constitutional challenge, there are a host of
4 other legal impediments to the consideration of this testimony.
5 I know this Court alluded to the notion that 04:35
6 testimony challenging the wisdom of Congress is inadmissible.
7 We agree with that. But that is the purpose for which these
8 experts seek to offer testimony.
9 And here's the proof of that, Your Honor: What
10 plaintiff's experts want to provide this Court is the 04:35
11 following: There's no empirical evidence to support "Don't
12 Ask, Don't Tell." Foreign militaries do it, therefore the unit
13 cohesion rationale that Congress considered has somehow been
14 undermined. Unit cohesion, that argument is without merit.
15 But the fact of the matter is, Your Honor, in a 04:36
16 facial constitutional challenge, the Court looks at the
17 legislative history. And what does the legislative history say
18 in this case? And the plaintiff doesn't dispute this. It's
19 indisputable, frankly.
20 Congress heard testimony about foreign militaries and 04:36
21 weighed that testimony and ultimately reached a conclusion.
22 Plaintiff wants to bring in expert testimony to challenge that
23 conclusion to say, We understand Congress considered foreign
24 militaries and ultimately decided, while that may be a relevant
25 data point, it's not dispositive. Plaintiff's experts are 04:36

43
1 going to come in and say, No, they are dispositive, and they
2 show the lack of logic in Congress's determinations.
3 Unit cohesion. Same example.
4 In fact, Dr. MacCoun, I think, is a particularly good
5 example of this. There's no dispute now, as plaintiff 04:36
6 acknowledged in its reply brief to the motion in limine, that
7 Dr. MacCoun, who offered Chapter 10 of the RAND report, was
8 submitted to Congress. Chapter 10 dealt with, just like his
9 expert opinion, unit cohesion.
10 Congress considered that RAND report, as well as all 04:37
11 sorts of other testimony, and reached a judgment. Plaintiff
12 now wants to bring in expert testimony to challenge that
13 judgment about unit cohesion.
14 And the same thing is true with empirical evidence,
15 Your Honor. Plaintiff wants to come in and say there was no 04:37
16 empirical evidence that Congress considered.
17 One, factually, that's not true; two, we don't need
18 an expert to say what Congress did or did not consider. The
19 legislative history says what Congress considered. And even
20 under a heightened scrutiny test, such as Goldman by the 04:37
21 Supreme Court, scientific studies are not necessary,
22 particularly in the context of the military, where the
23 judiciary routinely defers to the wisdom and judgment of
24 Congress.
25 THE COURT: Well, you know, you cite Goldman in your 04:37

44
1 papers several times, but Goldman -- and I'm trying to remember
2 the exact wording the way you used it -- but Goldman was really
3 quite narrowly focused on the lack of -- I'm trying to remember
4 the exact wording of this holding, because I think you expanded
5 it beyond that -- on the lack of factual record that was needed 04:38
6 to analyze the dress code in the military.
7 That's the Yamika case; right?
8 MR. GARDNER: That's the Yamika case. That's right,
9 Your Honor.
10 And there was a regulation by the Department of the 04:38
11 Air Force.
12 And what did the Supreme Court do in that case? They
13 looked at the plain language of that regulation.
14 Justice Rehnquist, former-Chief Justice Rehnquist,
15 said, You know what, I don't need expert testimony to say 04:38
16 whether or not this is a good policy, a bad policy or whether
17 this policy makes sense. We're going to look at the plain
18 language of the regulation and make that determination.
19 That's the exact analysis this Court should apply
20 here. 04:39
21 And I know that the plaintiff, in its supplemental
22 brief, took the position that, Look, if you apply the
23 Witt standard and you conclude that the government has the
24 burden of proof, the government has not met that burden of
25 proof, and they're entitled to summary judgment. 04:39

45
1 I think the plaintiff and the defendants agree on one
2 point, Your Honor. This is a legal conclusion. And to the
3 extent you conclude, and we would argue erroneously, that Witt
4 somehow applies and that somehow that shifts the burden to the
5 government, the government is not presenting evidence in this 04:39
6 case, Your Honor. And we can be very clear about that.
7 The government is relying upon the statute and
8 legislative history. So if you conclude that somehow the
9 government bears some burden in a facial constitutional
10 challenge, I don't know why there would be a need to have a 04:39
11 trial in this case. I think plaintiff has made that point in
12 its supplemental brief.
13 With respect to the animus issue, I know the Court
14 touched on the legislator privilege. I think it's broader than
15 that, Your Honor. The Court does not look at the motivations 04:39
16 of anyone associated with the legislation in a facial
17 constitutional challenge.
18 Instead, what it does is, it looks at the purposes
19 that animate the statute. And the purposes that animate that
20 statute are revealed by the plain language of the statute. And 04:40
21 this issue is largely off the table for much more basic
22 reasons. Because Philips has already resolved this. Because
23 Witt itself, in an as-applied context, said there are
24 legitimate reasons for "Don't Ask, Don't Tell." And those
25 involve things such as sexual tension, privacy, and unit 04:40

46
1 cohesion. And regardless of the Lawrence decision, those
2 findings remain good law to this day.
3 In fact, the First Circuit's decision in Cook makes
4 that clear. Cook, a post-Lawrence case, considered Lawrence
5 and considered the unique context of the military and 04:40
6 determined that "Don't Ask, Don't Tell" was facially
7 constitutional. And it did that, it conducted that analysis,
8 Your Honor, by looking at the statute and legislative history.
9 Even the case the plaintiff cites to, where their two
10 experts testified, MacCoun and Korb, the Abel case, actually 04:41
11 refutes this notion that expert testimony is relevant or
12 important. In Abel, the Eastern District of New York didn't
13 even address the testimony of expert witnesses. Rather, it did
14 exactly what we are suggesting you should do in this case:
15 Look at the legislative history, look at the text of the 04:41
16 statute, and make a conclusion based upon that.
17 Ultimately, the Eastern District did, and that
18 decision was reversed by the Second Circuit, which has
19 concluded that "Don't Ask, Don't Tell" is constitutional.
20 In fact, Your Honor, the fact that different circuits 04:41
21 have held, even in an as-applied basis, that "Don't Ask, Don't
22 Tell" is constitutional should doom a facial constitutional
23 challenge. Because, under Salerno, it reveals the fact that
24 there are constitutional applications.
25 So I think that addresses many of the general 04:42

47
1 relevance objections the government had under 702 and whether
2 or not this is probative of anything.
3 I do want to quickly address Dr. Korb's opinion.
4 Dr. Korb's opinion in this case -- I asked him at his
5 deposition, What is your opinion in this case? 04:42
6 He answered that "Don't Ask, Don't Tell" is
7 unconstitutional.
8 And how do you get there, Dr. Korb?
9 I get there because I don't see a rational basis for
10 it.
11 And if you look at Dr. Korb's report, that's all it
12 purports to be. In fact, the whole back half of Dr. Korb's
13 report is nothing but a regurgitation of some of the other
14 expert witnesses in this case's conclusions.
15 For example, I believe beginning at Page 8, if you 04:42
16 look at Dr. Korb's opinion, there's either no facts or data
17 relied upon, or the facts and data that were relied upon
18 consist of Dr. Frank's book and a New York Times article. And
19 I think in the section before that, he relies upon a
20 Rachael Maddow interview. 04:43
21 Even if this testimony were otherwise admissible
22 under the first prong of 702, to the extent it could ever be
23 helpful to the Court in a facial constitutional challenge, the
24 reliability is facially inherently suspect.
25 This Court has already addressed the disparate 04:43

48
1 treatment claim from lesbian service members, and I won't
2 rehash that.
3 But I do want to focus a little bit more on Korb's
4 reliability issue. Dr. Korb was asked repeatedly at his
5 deposition, Are you challenging the wisdom of Congress in its 04:43
6 failure to consider certain issues? Are you challenging the
7 wisdom of Congress in its weighing of issues differently?
8 And what did Dr. Korb say repeatedly, as we noted in
9 our motion? Yes, I'm challenging the wisdom of Congress.
10 Now, I understand the plaintiff now wants to sort of 04:44
11 recast these opinions, and say, No, he's not going to do that;
12 that's not the purpose. But I think a fair and plain reading
13 of his expert report reveals exactly the opposite, that all of
14 their expert witnesses at the end of the day want to challenge
15 the congressional findings. And that is simply inappropriate. 04:44
16 I know this Court has considered the cumulativeness
17 issue under 403.
18 The only other point I wanted to raise briefly was
19 Dr. Belkin's, quote, "revised report."
20 As we mentioned in the motion, that revised opinion 04:44
21 should be struck. That's an opinion related to privacy.
22 And just very quickly, per the pretrial schedule in
23 this case, Dr. Belkin submitted an initial expert report on
24 January 15th of this year. And there's no dispute whatsoever
25 that he didn't offer any opinions about privacy in that 04:45

49
1 original report.
2 The night before his deposition, as Dr. Belkin
3 testified, counsel for LCR asked Dr. Belkin, Hey, Dr. Belkin,
4 will you offer an opinion about privacy?
5 So the next day at his deposition, my colleague, 04:45
6 Mr. Freeborne, asked Dr. Belkin, What did you do to prepare for
7 your deposition?
8 Spoke to counsel.
9 What did you speak about?
10 Privacy. 04:45
11 And that's where the privacy discussion came up.
12 And then on March 24th, approximately three weeks
13 later, Dr. Belkin now submits a revised report offering an
14 opinion about privacy.
15 This isn't a circumstance where Rule 26(e) applies. 04:45
16 There is certainly no duty to supplement a report as, quote,
17 "new facts become available." Dr. Belkin presumably had these
18 facts. In fact, Dr. Belkin testified at his deposition that
19 he's considered privacy issues before.
20 Frankly, this last-ditch effort to offer what is 04:46
21 essentially a rebuttal opinion is inappropriate and should be
22 excluded under Rule 37. The fact that the government asked
23 Dr. Belkin questions about the issue is largely irrelevant,
24 because, again, this is a violation of Rule 16 now and the
25 pretrial order deadlines. Plaintiff has to show good cause as 04:46

50
1 to why it has the opportunity to issue revised opinions. It's
2 failed to meet that burden.
3 Thank you, Your Honor.
4 THE COURT: Thank you.
5 Mr. Woods. 04:46
6 MR. WOODS: Your Honor, I have several comments about
7 each of the individual experts, and then I want to talk about a
8 larger subject when I'm finished with that.
9 First, you asked about portions of the testimony of
10 Professor Frank and the potential application of the 04:47
11 legislator's privilege to that testimony.
12 As we all know, that issue was not part of the
13 government's motion in limine. It was not briefed and has not
14 been briefed.
15 And so what I intend to do, Your Honor, between now 04:47
16 and the date that we call Professor Frank, is to consider that
17 issue very carefully. If we think that his testimony or parts
18 of it would be in violation of that privilege, we won't ask him
19 those questions.
20 If we, however, Your Honor, conclude that it would 04:47
21 not violate that privilege, then we will supplement our
22 briefing on this for you and provide you a brief about that.
23 Because I seem to recall school prayer cases where the intent
24 of the legislators was considered as part of the constitutional
25 challenge to school prayer issues. But, as I said, we'll brief 04:47

51
1 that later on.
2 With respect to Ms. Embser-Herbert, the point here,
3 Your Honor, is not that it's an Equal Protection claim. We
4 know it's not an Equal Protection claim.
5 And while people, including her perhaps, use the term 04:48
6 "disproportionate impact," it's not used in that sense. The
7 sense of it is that "Don't Ask, Don't Tell" doesn't further its
8 stated policies because of the way it is impacting women
9 instead of men. If the policy really was to further the
10 interests that it is supposedly furthering, you wouldn't see 04:48
11 40 percent of the discharges being women. We're not offering
12 it to support an Equal Protection claim; we're offering it to
13 show that the policy doesn't accomplish its stated purposes.
14 She is a sociologist who's testifying, from that
15 viewpoint, on how the policy disproportionately impacts women 04:48
16 and related subjects.
17 In contrast, Elizabeth Hillman, Your Honor, who is a
18 professor of law, is not testifying as a lawyer in this case;
19 she's testifying as a historian, a military historian no less,
20 whose particular emphasis is on military history and women. 04:49
21 She was in the military herself. So her testimony is from that
22 angle.
23 And you asked about her methodology and whether it
24 was clear enough. And, again, I would suggest to you that her
25 report was perhaps briefer than some of the others and didn't 04:49

52
1 explain it in as much detail as others. But as a social
2 scientist, historian in particular, it's not a situation where
3 you're going to find scientific experiments. She's going to
4 rely on the traditional things a historian, particularly with
5 an emphasis on military history and issues about women in 04:49
6 military issues, would testify.
7 And, again, I think that's something that perhaps
8 ought to be best taken up at the trial. If it doesn't qualify
9 once we lay a foundation, we can deal with it at that point,
10 Your Honor. 04:50
11 Similarly, counsel just asked about Professor Korb.
12 And I have to say, I mean, I think his argument about
13 Professor Korb doesn't do his stature the service it deserves.
14 And this is a recognized member of our military defense
15 organization from his career. 04:50
16 THE COURT: He is the former Assistant Secretary of
17 Defense.
18 MR. WOODS: Yes. And he's certainly not going to
19 come here, Your Honor -- we aren't calling him to say any legal
20 opinion or conclusion. I hope counsel would give us a little 04:50
21 more credit than that.
22 With regards to Professor Belkin's revised report, we
23 covered that, Your Honor, in the declaration of Ms. Feldman
24 that we submitted with our opposition papers.
25 What happened was, in the pre-deposition meeting, he 04:51

53
1 was informed that he would likely be asked questions about
2 privacy. And so he was. He was asked in his deposition if he
3 would be supplementing his report. He said, Yes, I'd be happy
4 to. And he did. And those are the facts before you now.
5 And, again, those are the facts we put to you in 04:51
6 Ms. Feldman's declaration in opposition to the motion. The
7 government's reply papers did not contradict them at all.
8 Once again, I think you hit on this before when you
9 were saying that the government was trying to have it both
10 ways. In other words, the government is trying to say that in 04:51
11 a facial challenge, all the Court can look at is the
12 legislative history, and at the same time exclude all of our
13 evidence, so therefore what could possibly be challenged?
14 But I think we have briefed adequately, throughout
15 all of the papers that we have filed leading up to this 04:52
16 conference, the points that we have made throughout, which is
17 that the position by the government is just plain wrong.
18 We have many cases, Cleburne, Lawrence, and other
19 facial challenge cases, where evidence was admitted after the
20 enactment of the statute, both in terms of what people learned 04:52
21 about the enactment of the statute after it was passed and how
22 it was implemented in practice. We've got lots of cases in our
23 opposition to the summary judgment motion, in our pretrial
24 memorandum of contentions of fact and law, and our proposed
25 findings of fact and conclusions of law, and in our 04:52

54
1 supplemental brief on Witt.
2 Again, counsel for the government continues to cite
3 to you cases that are not governing law in this circuit. I
4 mean, he cites Philips. And we have said over and over, and
5 you have said twice, that Philips is no longer a good law after 04:53
6 Lawrence.
7 He cites Cook. And the Cook case says many, many
8 times that it explicitly disagrees with the Witt case; And so
9 it is not the law of this circuit. Witt is.
10 Once again, the Government is ignoring the 04:53
11 controlling law in the circuit, which is the Witt case.
12 And he mentions the Abel case in which two of our
13 experts were qualified as experts.
14 You know, once the Court allows evidence to come in
15 on a facial challenge, it really shouldn't matter whether the 04:53
16 evidence is from an individual who presents facts or whether
17 it's from an expert who synthesizes many facts and makes these
18 facts more useful and intelligently presented to the Court.
19 So all of these arguments, I think, Your Honor, we
20 have already covered. 04:53
21 I do want to go back to one other thing, though, that
22 Mr. Gardner said.
23 I think, Your Honor, we're all waiting for a final
24 definitive ruling on the government's motion for summary
25 judgment on the merits and a final ruling as to whether the 04:54

55
1 Witt standard does apply.
2 THE COURT: The Witt standard does apply.
3 I have not issued a written ruling on it, and I had
4 hoped to have it by today, but a ruling on the motion is going
5 to go out this week. But the Witt standard, that part is done, 04:54
6 and the Witt standard is going to apply.
7 MR. WOODS: Very well. Thank you.
8 And I think that's right, for all of the reasons
9 we've briefed before.
10 But I want to follow up on something Mr. Gardner just 04:54
11 said. He said to you a moment ago, if I heard him correctly,
12 Your Honor, that if the Witt standard applies --
13 THE COURT: Please slow down. I'm going to put a
14 sign on the lectern for this trial, I can see. It won't be the
15 first time I've done that. 04:54
16 MR. WOODS: Or the last.
17 THE COURT: And it's going to apply to both sides.
18 Go ahead.
19 MR. WOODS: I should speak more slowly on this point,
20 because it's really important. 04:55
21 If I understood what Mr. Gardner just said correctly,
22 he said that if the Witt standard applies, and we know what
23 that means, that means the Government has a burden to show
24 certain things. He has just said, again, that the government
25 does not intend to present any evidence at this trial beyond 04:55

56
1 the legislative history.
2 I will remind you, Your Honor, you gave the
3 government the opportunity to present evidence in your order
4 requesting supplemental briefing about the application of the
5 Witt standard and whether "Don't Ask, Don't Tell" survives in 04:55
6 light of the Witt standard's application to this case. And the
7 government chose not to present any evidence in response to
8 that invitation you gave to the government.
9 Mr. Gardner just said, If the Witt standard applies
10 and we're not going to produce any evidence, there may be no 04:56
11 need for a trial.
12 Your Honor, I think, for once, I happen to agree with
13 Mr. Gardner. There is no need for a trial if that's the
14 government's position.
15 Instead, you should grant summary judgment right now, 04:56
16 right here, to us, sua sponte. Because once the Witt standard
17 applies, we know what that means. I read it already to you
18 once today. It's in your order. The government has to show
19 certain things. If the government does not intend to show
20 that, then there is no need for a trial and we win. And that's 04:56
21 something I think that may be worthy of some further
22 consideration.
23 Thank you, Your Honor.
25 MR. GARDNER: Your Honor, may I add just one very 04:56

57
1 quick point. You've indicated that you're going to apply the
2 Witt standard.
3 THE COURT: I'm not going to hear any more argument
4 on the Witt standard. I gave both sides the opportunity to
5 brief the Witt standard, and the government's brief didn't 04:57
6 really address the Witt standard.
7 You spent the first, I can't remember, four or five
8 pages addressing whether the Court should issue a stay in this
9 case, but you didn't address the Witt standard. And I have a
10 lot of attorneys waiting outside for my next matter, so I need 04:57
11 to move on to finish up with your case. So no more argument on
12 the motions.
13 Is there a motion to exclude witnesses during
14 testimony?
15 MR. FREEBORNE: Yes, Your Honor. 04:57
16 Just to be clear, obviously experts would not be
17 excluded, nor the party representative, but the fact witnesses
18 would. And just to be clear, there can be no discussion with a
19 witness while they're on the stand.
20 THE COURT: No discussion of the witness while... 04:57
21 MR. FREEBORNE: No discussion with the witness while
22 he or she is on the stand.
23 THE COURT: Of course. That's right.
24 So each side is responsible for making sure that your
25 witnesses know to stay out of the courtroom during -- that 04:58

58
1 doesn't include, of course, openings and closings, just
2 testimony. And it doesn't apply to experts. Make sure your
3 witnesses know to remain outside of the courtroom during
4 testimony.
5 Then we have the issue of Mr. MacCoun. 04:58
6 Is he to be considered unavailable because under the
7 terms of his contract, he can't testify?
8 MR. WOODS: Your Honor, we have served him with a
9 trial subpoena. We filed a proof of service of that subpoena
10 today. I continue to believe that he will not appear despite 04:58
11 the subpoena. I imagine that we only recently served the
12 subpoena, and it's possible that he may appear, but I tend to
13 doubt it.
14 THE COURT: He's the witness that works at RAND?
15 MR. WOODS: He is working for RAND currently, yes. 04:59
16 He's a UC Berkeley professor by profession.
17 THE COURT: But he takes the position that he can't
18 testify because of the terms of his consulting contract with
19 RAND?
20 MR. WOODS: Yes, Your Honor. 04:59
21 THE COURT: All right. Well, was his deposition
22 videotaped?
23 MR. WOODS: It was not, Your Honor.
24 THE COURT: The government cited some authority to
25 the effect that it's preferable to have a witness testify in 04:59

59
1 person than by deposition, which is true. The thing that's not
2 clear to me is that a witness could be considered unavailable
3 because, by the terms of a contractual obligation, he more or
4 less declares himself unavailable.
5 I've just never had that issue come up before. And 05:00
6 I'm not making light of it. The marshals are very, especially
7 in this district, completely overworked.
8 I think I'm going to research that a little bit. If
9 I'm not persuaded that makes him unavailable, then it's just
10 like any other witness, expert or no, if he doesn't obey a 05:00
11 subpoena, then he'll receive another kind of invitation to
12 appear.
13 MR. WOODS: We will also research that, Your Honor,
14 and perhaps we could let Professor MacCoun know that he may get
15 a different kind of invitation to appear. 05:00
16 THE COURT: You know, a witness is a witness. I just
17 went through this with some other reluctant witnesses in the
18 trial that I hope to finish tomorrow, so...
19 There are no exemptions. Occupation is not an
20 exemption. 05:01
21 But I'm just not sure whether it's a contractual
22 obligation. I don't know why it would be. So one way or the
23 other -- he may be riding in a different sort of vehicle than
24 he's used to to appear.
25 Any other witness issues that we're aware of? 05:01

60
1 MR. WOODS: No, Your Honor.
3 Is either side going to use any equipment other than
4 the equipment that's in the courtroom?
5 For example, are you going to hook up your own 05:01
6 computers to do PowerPoints, anything like that?
7 MR. GARDNER: We do intend to use TrialDirector, Your
8 Honor, and we do intend to use realtime. As I understand it,
9 we can use the courtroom's facilities both to transmit
10 documents through TrialDirector and using the E.L.M.O. And for 05:01
11 realtime, we will bring in our own laptops, if that's --
12 THE COURT: That's fine. When you say "Trial
13 Director"...
14 MR. GARDNER: TrialDirector is one of the proprietary
15 software items that allows you to put up documents on the 05:02
16 screen. It's a little more high tech than the E.L.M.O. It
17 allows you to blow up portions of documents, et cetera.
18 THE COURT: I just wasn't familiar with it.
19 And your side?
20 MR. WOODS: I imagine we'll do something similar, 05:02
21 Your Honor.
22 THE COURT: Just make sure to make an appointment
23 through Ms. Dillard to come in and get your equipment
24 installed; and make sure, through the Court's IT person, that
25 everything works smoothly, so that we're ready to go on the 05:02

61
1 morning of.
2 You should be able to set your things up -- I've
3 always wanted to say this: Have your people talk to my people,
4 the Friday before trial and make sure everything is up and
5 working. The courtroom should be available to you. 05:02
6 Make sure your depositions are lodged with the Court,
7 with the clerk before trial.
8 Make sure that you comply with the local rule about
9 redacting any personal identifying information, including
10 social security numbers, home addresses, and telephone numbers 05:03
11 of individual persons.
12 I'll allow the parties to make a short opening
13 statement, but keep in mind I've already read your memorandum
14 of contentions of law and fact; but you're free to give a short
15 opening statement at the beginning, if you'd like. 05:03
16 MR. FREEBORNE: Your Honor, that presents some
17 particular difficulties for us. Obviously, the way we see this
18 case is, it presents legal issues; and I know Your Honor has a
19 standing order which prohibits legal argument in the context of
20 an opening statement. We would ask that opening statements be 05:04
21 dispensed with. The parties have been heard on these issues.
22 THE COURT: I'm not so concerned in a court trial. I
23 mean, as lawyers who practice regularly in front of me can tell
24 to you, to their dismay I'll interrupt in a jury trial, even
25 without objection from the other side, if I think it's 05:04

62
1 argument.
2 I agree with you in this case that it's hard to
3 separate. So if you want to waive, you can waive. But if you
4 want to give a brief opening to set the stage, you can do so.
5 But I am familiar, and I hope to be even more 05:04
6 familiar by July 13th. So if you want to set the stage and
7 give a brief opening, that's fine. If you want to waive,
8 that's fine.
9 A joint witness list is to be submitted.
10 When I take up my other matter, Ms. Dillard will talk 05:05
11 to you about the exhibit list and the exhibit notebooks and so
12 forth. Then she'll return those to you.
13 So, like I said, you can -- well, you know what I
14 mean by recycling them, use them for these purposes.
15 I will issue a written ruling on the motions 05:06
16 in limine.
17 And, like I said, I intend to have the ruling on the
18 motion for summary judgment out this week.
19 Anything further from either side?
20 MR. FREEBORNE: Your Honor, when can we expect the 05:06
21 order on the motions in limine?
22 THE COURT: This week. It's mostly done, so this
23 week.
24 MR. FREEBORNE: Thank you.
25 MR. WOODS: Nothing further, Your Honor. 05:06

63
1 THE COURT: All right. Thank you very much.
2 (Proceedings concluded.)
4 CERTIFICATE
6 I hereby certify that pursuant to section 753, title 28, United

States Code, the foregoing is a true and correct transcript of
7 the stenographically recorded proceedings held in the above-
entitled matter and that the transcript page format is in
8 conformance with the regulations of the Judicial Conference of
the United States.
9
10 _/S/ Theresa A. Lanza _________________

CSR, RPR Date
11 Federal Official Court Reporter
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1
0 adducing [1] - 16:14 animus [2] - 10:6, 41:13, 45:23, 46:21

6
adequately [1] - 45:13 aside [1] - 27:20
53:14 answer [2] - 13:14, aspect [1] - 27:11
04-8425-VAP(ex [1] - 6108 [1] - 2:15 admissibility [6] - 19:14 asserted [2] - 28:14,
4:4 633 [1] - 2:6 7:15, 7:23, 8:2, 37:21, answered [1] - 47:6 28:18
38:3, 38:14 appeal [1] - 28:24 assertion [2] - 27:25,
1 7 admissible [12] - appear [8] - 6:8, 28:9
7:24, 14:18, 17:25, 6:10, 11:5, 58:10, assist [1] - 39:7
34:24, 35:18, 36:2, 58:12, 59:12, 59:15, Assistant [1] - 52:16
10 [2] - 43:7, 43:8 702 [5] - 34:22, 39:6,
39:20, 39:23, 39:24, 59:24 associated [1] -
12 [1] - 12:8 39:15, 47:1, 47:22
39:25, 40:6, 47:21 APPEARANCES [1] - 45:16
13,000 [1] - 31:20 7th [2] - 15:1, 16:17
admission [1] - 8:20 2:1 associational [2] -
13,400 [1] - 32:14
admit [1] - 10:21 appearances [1] - 28:13, 28:16
13th [2] - 4:17, 62:6 8 admitted [7] - 8:10, 4:6 assume [1] - 23:22
14 [1] - 4:3
11:5, 11:12, 11:16, application [10] - assuming [1] - 18:20
15th [1] - 48:24
8 [1] - 47:15 11:23, 12:2, 53:19 12:22, 27:24, 28:4, attached [1] - 35:8
16 [1] - 49:24
adopt [1] - 15:10 28:6, 28:10, 28:15, attack [1] - 38:21
17th [5] - 14:25,
25:16, 25:21, 25:22, 9 adopts [1] - 31:14 33:11, 50:10, 56:4, attempting [1] -
advance [7] - 6:14, 56:6 23:16
26:9
11:22, 15:22, 15:23, applications [1] - attempts [1] - 31:7
1900 [1] - 2:7 9 [1] - 10:9 23:11, 23:14, 31:9 46:24 attorneys [3] - 24:15,
90071-2007 [1] - 2:7 affect [2] - 13:8, applied [7] - 31:1, 24:17, 57:10
2 13:25 32:22, 33:16, 41:8, authenticated [1] -
A afternoon [1] - 4:11 41:13, 45:23, 46:21 17:24
20 [1] - 2:14 ago [1] - 55:11 applies [7] - 12:17, authenticity [1] -
20001 [1] - 2:15 agree [13] - 6:1, 7:15, 45:4, 49:15, 55:12, 8:22
Aaron [3] - 2:6, 4:14,
2010 [1] - 4:1 7:19, 7:24, 8:5, 8:9, 55:22, 56:9, 56:17 authority [1] - 58:24
37:16
202-353-0543 [1] - 9:15, 14:1, 18:10, apply [12] - 9:22, available [5] - 5:12,
Abel [3] - 46:10,
2:16 42:7, 45:1, 56:12, 15:20, 16:7, 31:3, 15:12, 16:22, 49:17,
46:12, 54:12
20th [4] - 16:22, 62:2 44:19, 44:22, 55:1, 61:5
ability [3] - 14:24,
30:15, 30:18, 31:1 agreed [1] - 17:23 55:2, 55:6, 55:17, Avenue [1] - 2:14
26:20, 26:23
213-620-7772 [1] - ahead [3] - 11:17, 57:1, 58:2 aware [1] - 59:25
able [3] - 4:24, 5:17,
2:8 40:20, 55:18 applying [1] - 31:5
61:2
Air [1] - 44:11 appointment [1] -
24th [1] - 49:12 absence [1] - 4:20 B
26 [1] - 15:15 al [1] - 4:5 60:22
abundant [1] - 27:14
26(e [1] - 49:15 allow [5] - 9:12, April [3] - 16:6, 25:6,
accomplish [1] -
17:10, 19:3, 19:16, 25:11 backup [2] - 5:7,
26th [2] - 16:6, 25:11 51:13
61:12 aptly [1] - 40:1 5:14
27th [1] - 25:6 according [2] -
allowed [1] - 35:18 area [1] - 37:3 bad [1] - 44:16
28 [1] - 4:1 12:12, 28:17
allowing [5] - 14:14, areas [1] - 27:6 balancing [1] - 22:8
accurate [3] - 20:11,
14:16, 16:9, 29:6, argue [4] - 22:13, bar [2] - 14:6, 34:18
3 35:7, 35:9
29:6, 38:21, 45:3 based [13] - 7:9,
30:20
acknowledged [1] -
allows [3] - 54:14, argues [6] - 12:17, 8:16, 8:25, 10:5,
43:6
30(b)(6 [6] - 12:25, 60:15, 60:17 13:1, 13:6, 15:8, 11:18, 36:16, 36:23,
action [1] - 21:14
13:15, 13:24, 14:13, alluded [1] - 42:5 34:21, 34:23 37:7, 37:9, 37:11,
add [2] - 29:16, 37:21, 39:11, 46:16
16:24, 24:15 almost [2] - 9:16, argument [15] -
56:25 basic [2] - 42:2,
37 [1] - 49:22 33:8 12:21, 16:25, 21:3,
addition [1] - 26:24 45:21
37(c)(1 [2] - 14:22, alternative [1] - 21:25, 22:6, 26:25,
address [9] - 9:7, basis [8] - 12:2,
22:9 34:24 29:25, 32:25, 33:1,
23:23, 27:2, 39:17, 12:13, 34:21, 36:4,
3:27 [1] - 4:1 America [2] - 4:5, 42:14, 52:12, 57:3,
40:14, 46:13, 47:3, 36:9, 36:15, 46:21,
30:9 57:11, 61:19, 62:1
57:6, 57:9 47:9
4 addressed [1] -
amicus [1] - 41:16 arguments [4] -
analysis [3] - 36:7, 21:24, 30:6, 31:2, bears [1] - 45:9
47:25 became [1] - 20:15
44:19, 46:7 54:19
4 [1] - 3:3 addresses [4] -
analyze [2] - 37:6, arranged [2] - 5:7, become [3] - 11:24,
40 [1] - 51:11 14:25, 26:1, 46:25, 20:4, 49:17
44:6 5:11
402 [1] - 34:22 61:10
anecdotal [1] - 36:1 arrangements [1] - begin [2] - 4:17, 29:5
403 [2] - 34:25, 48:17 addressing [2] -
Angeles [1] - 2:7 17:4 beginning [3] - 17:7,
23:22, 57:8
angle [1] - 51:22 article [1] - 47:18 47:15, 61:15
adduced [1] - 21:15
animate [2] - 45:19 as-applied [4] - 41:8, begins [1] - 16:17
Case Name/number date

2
Behalf [2] - 2:3, 2:10 44:24, 45:4, 45:9, 19:15, 23:13, 27:10, class [1] - 15:3 conflict [1] - 5:6
behalf [4] - 4:7, 9:4, 50:2, 55:23 27:14, 27:15, 27:17, clear [11] - 11:24, confusion [2] - 21:5,
14:7, 32:9 BY [7] - 2:5, 2:5, 2:6, 27:19, 28:1, 28:2, 13:20, 40:23, 40:24, 21:9
belie [1] - 27:25 2:12, 2:13, 2:13, 2:14 28:3, 28:5, 32:8, 40:25, 45:6, 46:4, Congress [18] - 9:4,
belies [1] - 28:14 32:20, 33:13, 33:18, 51:24, 57:16, 57:18, 9:15, 36:20, 36:24,
Belkin [10] - 37:16, C 33:20, 33:25, 34:8, 59:2 37:2, 37:4, 42:6,
48:23, 49:2, 49:3, 34:9, 38:15, 41:1, Cleburne [3] - 41:7, 42:13, 42:20, 42:23,
49:6, 49:13, 49:17, 41:3, 41:5, 41:8, 41:10, 53:18 43:8, 43:16, 43:18,
Cabin [3] - 4:4, 4:13, 41:10, 41:12, 41:13, 43:19, 43:24, 48:5,
49:18, 49:23 CLERK [1] - 4:3
20:4 41:21, 42:3, 42:16, 48:7, 48:9
Belkin's [2] - 48:19, clerk [1] - 61:7
Calendar [1] - 4:3 42:22, 43:12, 45:10, congress [1] - 43:10
52:22 close [1] - 24:22
calendar [1] - 4:15 45:17, 46:23, 47:23, Congress's [1] -
belying [1] - 32:8 closings [1] - 58:1
California [2] - 2:7, 48:14, 50:25, 53:11, 43:2
benefits [1] - 7:22 code [1] - 44:6
4:1 53:19, 54:15 congressional [1] -
Berkeley [2] - 38:5, cohesion [11] - 32:5,
Canada [1] - 39:23 challenged [1] - 48:15
58:16 38:12, 40:3, 42:13,
cannot [4] - 5:11, 53:13 connection [3] -
best [2] - 9:9, 52:8 42:14, 43:3, 43:9,
36:13, 41:23, 42:2 challenges [5] - 13:11, 17:15, 21:15
between [3] - 15:2, 43:13, 46:1
caption [1] - 30:13 33:22, 33:23, 34:7, consensual [1] -
24:6, 50:15 colleague [1] - 49:5
care [3] - 5:9, 6:14, 34:12, 41:22 41:20
beyond [6] - 12:15, colleagues [2] - 4:9,
24:23 challenging [6] - consider [9] - 6:3,
13:15, 13:18, 27:10, 4:13
career [1] - 52:15 19:16, 27:19, 42:6, 16:8, 33:9, 33:10,
44:5, 55:25 Colonel [2] - 20:8,
carefully [1] - 50:17 48:5, 48:6, 48:9 41:8, 42:2, 43:18,
bifurcation [1] - 5:19 20:15
Case [2] - 4:4, 4:12 change [1] - 15:20 comments [3] - 35:3, 48:6, 50:16
Biodiversity [2] -
20:20, 21:3 CASE [1] - 2:4 chaos [2] - 8:3, 37:4, 50:6 consideration [2] -
bit [3] - 33:6, 48:3, case [52] - 7:3, 7:10, 11:15 common [1] - 7:11 42:4, 56:22
59:8 7:17, 9:1, 11:13, Chapter [1] - 43:7 complain [1] - 30:23 considered [13] -
11:14, 12:14, 13:15, chapter [1] - 43:8 33:7, 42:13, 42:23,
bits [1] - 36:1 complete [1] - 4:25
13:16, 16:2, 20:9, characterize [1] - 43:10, 43:16, 43:19,
blow [1] - 60:17 completely [2] -
20:19, 21:7, 22:9, 36:1 46:4, 46:5, 48:16,
book [1] - 47:18 41:14, 59:7
23:18, 24:12, 25:6, characterizes [1] - 49:19, 50:24, 58:6,
Bowser [1] - 41:18 comply [1] - 61:8
26:23, 27:14, 28:17, 34:19 59:2
Bradley [1] - 2:13 compound [1] -
30:13, 31:6, 32:16, Chief [1] - 44:14 considering [2] -
branch [3] - 22:24, 28:11
33:3, 34:15, 35:19, choose [2] - 24:6, 16:13, 29:17
32:2 computers [1] - 60:6
39:4, 41:4, 42:1, 40:24 consist [1] - 47:18
Branch [1] - 2:12 conceive [1] - 9:23
42:18, 44:7, 44:8, chose [1] - 56:7 consists [1] - 7:19
breakdown [1] - 12:8 concern [1] - 32:13
44:12, 45:6, 45:11, Circuit [1] - 46:18 Constitution [1] -
breath [1] - 25:5 concerned [7] - 4:21,
46:4, 46:9, 46:10, circuit [3] - 54:3, 32:9
brief [10] - 43:6, 9:19, 21:23, 32:17,
46:14, 47:4, 47:5, 54:9, 54:11
44:22, 45:12, 50:22, 39:10, 39:14, 61:22 constitutional [13] -
48:23, 51:18, 54:7, Circuit's [1] - 46:3
50:25, 54:1, 57:5, concerns [4] - 13:9, 41:5, 41:12, 42:3,
54:8, 54:11, 54:12,
62:4, 62:7 circuits [1] - 46:20 35:4, 35:6, 39:18 42:16, 45:9, 45:17,
56:6, 57:9, 57:11,
briefed [4] - 50:13, circumstance [1] - conclude [4] - 44:23, 46:7, 46:19, 46:22,
61:18, 62:2
50:14, 53:14, 55:9 49:15 45:3, 45:8, 50:20 46:24, 47:23, 50:24
case's [1] - 47:14
briefer [1] - 51:25 circumstances [3] - concluded [1] - consulted [1] - 10:17
cases [17] - 32:9,
briefing [2] - 50:22, 12:19, 14:14, 23:4 46:19 consulting [1] -
33:13, 33:25, 34:2,
56:4 cite [2] - 43:25, 54:2 conclusion [8] - 58:18
34:7, 34:8, 34:11,
briefly [1] - 48:18 cited [9] - 13:19, 37:18, 37:21, 37:24, contact [3] - 16:18,
34:13, 50:23, 53:18,
briefs [2] - 29:24, 13:20, 14:3, 20:20, 42:21, 42:23, 45:2, 25:25, 26:9
53:19, 53:22, 54:3
41:16 21:2, 27:14, 33:13, 46:16, 52:20 contain [1] - 9:8
categories [1] -
bring [7] - 14:9, 28:3, 41:4, 58:24 conclusions [2] - contains [1] - 15:14
29:15
28:22, 33:20, 42:22, cites [4] - 33:25, 47:14, 53:25 content [1] - 10:24
certain [7] - 6:12,
43:12, 60:11 46:9, 54:4, 54:7 conduct [5] - 24:5, contentions [2] -
6:20, 9:7, 9:15, 48:6,
bringing [1] - 32:9 citing [2] - 34:2, 24:9, 26:4, 30:14, 53:24, 61:14
55:24, 56:19
broad [3] - 7:9, 8:25, 34:11 30:24 context [7] - 13:20,
certainly [6] - 5:23,
11:19 city [1] - 41:9 conducted [1] - 46:7 13:21, 14:2, 43:22,
12:1, 20:24, 21:25,
broad-based [2] - Civil [1] - 2:12 conducting [1] - 45:23, 46:5, 61:19
49:16, 52:18
7:9, 8:25 claim [7] - 14:23, 24:19 continue [3] - 5:3,
cetera [2] - 10:17,
broader [2] - 19:4, 28:18, 39:2, 48:1, confer [4] - 26:7, 19:15, 58:10
60:17
45:14 51:3, 51:4, 51:12 26:10, 26:11, 29:11 continues [2] -
challenge [45] - 7:9,
brought [1] - 19:19 claims [3] - 15:16, conference [3] - 34:21, 54:2
9:2, 12:14, 12:15,
burden [7] - 33:18, 15:18, 15:20 4:16, 7:1, 53:16 continuing [1] - 15:6

3
contract [2] - 58:7, 41:8, 41:15, 42:5, Daubert [4] - 38:15, 17:11, 24:5, 24:15, 15:15, 15:17, 15:19,
58:18 42:10, 42:16, 43:21, 38:17, 38:20 24:19, 30:10, 30:14, 16:3, 16:11, 16:12,
contractual [2] - 44:12, 44:19, 45:13, days [5] - 4:25, 5:8, 30:18, 30:21, 30:25, 18:20
59:3, 59:21 45:15, 47:23, 47:25, 5:16, 5:17, 24:8 61:6 disclosures [6] -
contradict [1] - 53:7 48:16, 53:11, 54:14, DC [1] - 2:15 describe [1] - 10:19 12:11, 15:3, 15:7,
contrary [1] - 41:24 54:18, 57:8, 61:6 deadlines [1] - 49:25 described [1] - 22:4 16:15, 24:24, 25:9
contrast [1] - 51:17 court [5] - 6:8, 6:9, deal [2] - 9:9, 52:9 deserves [2] - 7:24, discovery [3] -
controlling [1] - 14:9, 27:17, 61:22 dealt [1] - 43:8 52:13 12:12, 24:22, 26:18
54:11 Court's [6] - 4:15, decided [5] - 25:7, designated [2] - discussion [4] -
Cook [3] - 46:3, 54:7 15:19, 29:19, 29:22, 25:10, 25:11, 25:17, 13:17, 14:7 49:11, 57:18, 57:20,
cook [1] - 46:4 31:3, 60:24 42:24 designation [2] - 57:21
core [1] - 24:20 courtroom [4] - decision [6] - 15:19, 13:16, 13:18 disfavored [1] -
correct [7] - 12:8, 57:25, 58:3, 60:4, 16:9, 41:18, 46:1, despite [1] - 58:10 41:12
12:9, 19:23, 21:20, 61:5 46:3, 46:18 detail [2] - 29:21, dismay [1] - 61:24
25:21, 25:22, 26:2 courtroom's [1] - decisis [1] - 41:19 52:1 disparate [2] - 40:9,
corrected [1] - 38:16 60:9 declaration [3] - detailed [1] - 17:1 47:25
correctly [5] - 5:4, covered [6] - 6:10, 17:24, 52:23, 53:6 determination [1] - dispensed [1] -
32:14, 38:5, 55:11, 18:7, 22:15, 40:12, declarations [2] - 44:18 61:21
55:21 52:23, 54:20 17:15, 31:24 determinations [1] - dispositive [2] -
counsel [14] - 4:6, Craig [1] - 17:14 declares [1] - 59:4 43:2 42:25, 43:1
4:22, 4:24, 6:25, crammed [1] - 29:14 defendant [1] - 16:13 determinative [1] - disproportionate [1]
24:18, 30:5, 30:12, credit [1] - 52:21 Defendants [1] - 26:3 - 51:6
31:3, 38:21, 49:3, criminalizing [1] - 2:10 determine [1] - 41:16 disproportionately
49:8, 52:11, 52:20, 41:20 defendants [6] - determined [1] - [1] - 51:15
54:2 criteria [1] - 28:16 12:7, 14:23, 23:16, 46:6 dispute [3] - 42:18,
country [1] - 39:23 criticisms [1] - 38:13 24:16, 26:6, 45:1 developed [1] - 34:3 43:5, 48:24
couple [3] - 6:2, Crittenden [1] - defense [8] - 6:1, developments [1] - disputed [2] - 6:25,
17:12, 35:3 22:25 12:12, 12:17, 13:6, 14:13 33:21
course [6] - 6:19, cross [9] - 10:21, 16:24, 20:12, 21:25, different [7] - 31:22, disputes [1] - 15:2
15:6, 15:21, 33:21, 10:23, 10:24, 10:25, 52:14 32:3, 32:10, 35:4, District [2] - 46:12,
57:23, 58:1 11:7, 11:8, 11:9, Defense [2] - 24:17, 46:20, 59:15, 59:23 46:17
COURT [60] - 4:11, 19:17, 26:20 52:17 differently [1] - 48:7 district [1] - 59:7
4:15, 4:19, 5:12, 5:15, cross-examination defer [1] - 24:7 difficulties [1] - ditch [1] - 49:20
5:22, 7:11, 8:1, 8:14, [1] - 11:9 defers [1] - 43:23 61:17 Division [1] - 2:12
9:6, 10:7, 18:2, 18:9, cross-examine [8] - definitive [1] - 54:24 diligently [1] - 31:1 document [1] - 17:24
18:12, 18:25, 19:8, 10:21, 10:23, 10:24, definitively [1] - Dillard [2] - 60:23, documents [6] - 7:5,
19:14, 19:24, 20:10, 10:25, 11:7, 11:8, 19:12 62:10 11:15, 11:16, 60:10,
20:22, 21:1, 21:12, 19:17, 26:20 degree [1] - 9:8 direct [4] - 10:12, 60:15, 60:17
21:19, 22:13, 22:15, crucial [1] - 11:13 denied [3] - 11:20, 10:18, 10:20, 10:22 doe [1] - 21:11
23:25, 25:20, 25:25, cumulative [10] - 12:3, 14:23 directed [4] - 32:20, Doe [3] - 20:3, 20:15,
27:1, 29:2, 32:12, 12:24, 22:1, 22:5, deny [2] - 17:9, 32:21, 32:22, 33:2 21:4
33:16, 34:4, 34:16, 22:7, 28:25, 32:1, 21:22 Director".. [1] - Doe's [1] - 20:8
35:23, 38:9, 40:12, 32:11, 32:12, 32:18, denying [1] - 27:11 60:13 done [5] - 26:19,
40:17, 40:19, 43:25, 35:1 departed [1] - 41:19 disagree [1] - 30:17 30:10, 55:5, 55:15,
50:4, 52:16, 55:2, cumulativeness [6] - DEPARTMENT [1] - disagrees [2] - 41:2, 62:22
55:13, 55:17, 56:24, 23:24, 27:3, 27:6, 2:11 54:8 doom [1] - 46:22
57:3, 57:20, 57:23, 28:8, 48:16 Department [2] - disappointed [1] - Dorman [1] - 36:25
58:14, 58:17, 58:21, curable [1] - 16:20 24:17, 44:10 8:21 Dorman's [1] - 37:1
58:24, 59:16, 60:2, cutoff [1] - 26:18 depose [6] - 14:24, discerned [1] - 41:16 doubt [1] - 58:13
60:12, 60:18, 60:22, CV [1] - 4:4 16:21, 17:21, 18:24, discharge [4] - down [4] - 15:18,
61:22, 62:22 26:17, 26:21 12:19, 23:5, 32:4, 16:4, 34:4, 55:13
Court [44] - 7:22, D deposition [16] - 37:22 Dr [21] - 43:4, 43:7,
7:23, 8:8, 15:9, 16:8, 15:13, 16:22, 19:3, discharged [2] - 47:3, 47:4, 47:8,
17:20, 18:6, 19:21, 35:8, 35:12, 35:13, 31:21, 32:15 47:11, 47:12, 47:16,
20:13, 20:17, 24:3, Dan [2] - 2:5, 4:12
47:5, 48:5, 49:2, 49:5, discharges [2] - 47:18, 48:4, 48:8,
24:4, 24:7, 24:9, data [6] - 39:11,
49:7, 49:18, 52:25, 31:17, 51:11 48:19, 48:23, 49:2,
24:22, 26:16, 26:24, 40:2, 40:4, 42:25,
53:2, 58:21, 59:1 disclose [2] - 23:23, 49:3, 49:6, 49:13,
27:5, 27:11, 27:14, 47:16, 47:17
depositions [17] - 24:21 49:17, 49:18, 49:23
28:17, 29:5, 30:19, date [2] - 21:14,
13:5, 13:13, 16:24, disclosed [1] - 14:25 dress [1] - 44:6
31:5, 31:14, 41:2, 50:16
17:3, 17:8, 17:10, disclosure [7] - due [1] - 20:18

4
dues [1] - 20:4 equipment [3] - 60:3, 7:6, 7:14, 7:21, 8:4, 42:3, 42:16, 45:9, 22:16, 57:11, 59:18
during [11] - 13:13, 60:4, 60:23 8:5, 8:7, 8:11, 11:3, 45:16, 46:22, 47:23, finished [2] - 30:25,
14:18, 19:2, 22:24, erroneous [1] - 28:7 11:4, 11:5, 11:11, 53:11, 53:19, 54:15 50:8
24:10, 35:13, 36:24, erroneously [1] - 11:13, 11:18, 11:21, facially [2] - 46:6, finishing [1] - 5:23
37:24, 57:13, 57:25, 45:3 62:11 47:24 first [12] - 6:20, 7:25,
58:3 error [1] - 28:11 exhibits [16] - 6:16, facilities [1] - 60:9 14:20, 16:7, 20:14,
duty [3] - 15:6, especially [5] - 8:2, 6:19, 6:21, 6:23, 6:25, fact [25] - 11:10, 26:22, 37:24, 39:9,
24:23, 49:16 11:14, 12:17, 29:18, 8:3, 8:9, 8:15, 8:17, 16:23, 20:6, 25:15, 47:22, 50:9, 55:15,
59:6 8:19, 9:8, 9:10, 10:1, 27:22, 28:13, 33:20, 57:7
E essentially [1] - 10:8, 11:14, 11:19 39:7, 41:3, 41:10, First [1] - 46:3
49:21 expanded [1] - 44:4 41:22, 41:23, 42:15, fits [1] - 39:3
established [1] - expect [1] - 62:20 43:4, 46:3, 46:20, five [11] - 16:8,
E.L.M.O [2] - 60:10, expedition [1] - 6:17 46:23, 47:12, 49:18,
20:21 16:19, 22:8, 23:3,
60:16 experiences [1] - 49:22, 53:24, 53:25,
et [3] - 4:5, 10:17, 24:7, 26:8, 30:10,
Earle [2] - 2:5, 4:14 14:15 57:17, 61:14 31:20, 32:9, 32:15,
60:17
early [5] - 15:3, 15:6, experiments [1] - fact-finding [1] - 57:7
event [1] - 5:7
16:15, 16:18, 26:1 52:3 41:23 focus [3] - 9:25,
evidence [32] - 7:9,
Eastern [2] - 46:12, expert [28] - 9:13, factors [2] - 16:8, 27:5, 48:3
7:16, 9:3, 11:12, 12:4,
46:17 9:23, 9:24, 10:13, 22:8 focused [3] - 20:16,
12:15, 21:15, 22:20,
effect [5] - 33:10, 11:8, 11:17, 13:11, facts [16] - 7:9, 7:15, 22:18, 44:3
22:24, 23:17, 27:9,
36:15, 36:17, 40:3, 13:16, 13:17, 13:18, 20:2, 27:16, 27:20, focusing [1] - 23:12
28:4, 28:7, 28:23,
58:25 34:18, 35:18, 36:4, 39:11, 41:15, 47:16,
29:10, 33:14, 34:12, follow [2] - 39:22,
efficient [3] - 5:20, 39:7, 42:2, 42:11, 36:6, 41:4, 42:22, 47:17, 49:17, 49:18, 55:10
14:10, 28:22 43:14, 43:16, 45:5, 43:9, 43:12, 43:18, 53:4, 53:5, 54:16, following [4] - 5:2,
effort [1] - 49:20 53:13, 53:19, 54:14, 44:15, 46:11, 46:13, 54:17, 54:18 5:3, 5:10, 42:11
egregious [1] - 26:5 54:16, 55:25, 56:3, 47:14, 48:13, 48:14, factual [4] - 27:18, follows [1] - 31:6
eight [3] - 12:10, 56:7, 56:10 48:23, 54:17, 59:10 28:2, 41:9, 44:5 footnote [1] - 18:7
14:20, 30:13 evidentiary [1] - 8:24 expert's [1] - 35:8 factually [1] - 43:17 Force [1] - 44:11
either [9] - 11:7, exact [3] - 44:2, 44:4, experts [13] - 9:11, fail [1] - 31:3 forces [1] - 40:5
12:10, 13:15, 20:16, 44:19 10:9, 12:1, 34:19, failed [1] - 50:2 foreign [4] - 14:15,
28:2, 36:20, 47:16, exactly [3] - 29:13, 42:8, 42:10, 42:25, failure [3] - 14:20, 42:12, 42:20, 42:23
60:3, 62:19 46:14, 48:13 46:10, 50:7, 54:13, 23:23, 48:6 form [2] - 37:7, 37:9
elected [1] - 30:17 examination [1] - 57:16, 58:2 fair [1] - 48:12 former [11] - 12:18,
element [1] - 23:18 11:9 explain [1] - 52:1 familiar [4] - 24:3, 15:4, 24:25, 25:18,
elicited [1] - 13:23 examine [8] - 10:21, explicitly [1] - 54:8 60:18, 62:5, 62:6 27:4, 27:7, 27:8,
Elizabeth [1] - 51:17 10:23, 10:24, 10:25, expressed [1] - family [1] - 5:10 31:15, 36:21, 44:14,
Embser [2] - 38:23, 11:7, 11:8, 19:17, 37:20 far [2] - 4:21, 29:16 52:16
51:2 26:20 extent [12] - 6:12, Federal [1] - 2:12 former-Chief [1] -
Embser-Herbert [2] - example [13] - 10:2, 6:20, 8:16, 9:8, 11:18, federal [1] - 35:17 44:14
38:23, 51:2 10:12, 22:22, 23:1, 13:23, 14:5, 36:18, Feldman [1] - 52:23 forms [1] - 12:2
emphasis [2] - 27:17, 36:19, 37:17, 37:10, 41:2, 45:3, Feldman's [1] - 53:6 forth [2] - 10:15,
51:20, 52:5 39:22, 41:23, 43:3, 47:22 fellow [2] - 13:7, 62:12
empirical [3] - 42:11, 43:5, 47:15, 60:5 extremely [1] - 8:21 13:25 fortunate [1] - 29:17
43:14, 43:16 examples [2] - extrinsic [1] - 9:3 female [1] - 40:10 forward [1] - 20:7
enactment [5] - 10:4, 31:17, 41:25 fields [1] - 38:6 foundation [1] - 52:9
34:1, 34:14, 53:20, except [1] - 39:23 F Fifth [1] - 2:6 four [9] - 4:25, 5:8,
53:21 exception [1] - 6:7 file [1] - 7:7 5:16, 5:17, 29:12,
end [1] - 48:14 excerpts [1] - 13:10 filed [6] - 21:14, 29:13, 30:1, 30:12,
Engle [4] - 17:14, face [1] - 27:19
exclude [5] - 6:20, 29:24, 31:24, 31:25, 57:7
17:23, 18:8, 18:14 facial [42] - 9:2,
12:6, 12:7, 53:12, 53:15, 58:9 frame [2] - 9:18,
Ensley [1] - 17:14 12:14, 23:13, 27:9,
57:13 final [2] - 54:23, 36:25
entire [1] - 10:5 27:14, 27:15, 27:17,
excluded [4] - 12:16, 54:25 framework [1] - 40:5
entirely [1] - 9:16 27:18, 27:25, 28:2,
22:10, 49:22, 57:17 finally [5] - 12:23, Frank [7] - 10:2,
entitled [2] - 10:18, 28:3, 28:5, 32:8,
exemption [1] - 26:7, 26:12, 26:13, 10:3, 10:10, 35:21,
44:25 32:20, 33:12, 33:18,
59:20 28:12 39:13, 50:10, 50:16
envisioning [1] - 33:20, 33:22, 33:23,
exemptions [1] - findings [4] - 20:5, Frank's [3] - 36:16,
24:5 33:25, 34:7, 34:9,
59:19 46:2, 48:15, 53:25 39:10, 47:18
Equal [5] - 39:1, 34:12, 41:1, 41:3,
exercise [1] - 20:8 fine [4] - 33:6, 60:12, frankly [3] - 29:5,
41:5, 41:7, 41:10,
39:2, 51:3, 51:4, Exhibit [1] - 10:9 62:7, 62:8 42:19, 49:20
51:12 41:11, 41:21, 41:22,
exhibit [17] - 6:24, finish [4] - 5:17, free [1] - 61:14

5
Freeborne [3] - 2:12, 31:10, 31:13, 31:18, helpful [1] - 47:23 hoped [1] - 55:4 includes [1] - 36:20
4:7, 49:6 33:4, 33:19, 33:24, Herbert [2] - 38:23, host [1] - 42:3 including [3] - 37:22,
FREEBORNE [25] - 34:18, 34:19, 38:25, 51:2 hours [2] - 17:12 51:5, 61:9
4:7, 5:5, 5:13, 5:18, 39:19, 44:23, 44:24, herself [1] - 51:21 house [1] - 24:18 incorrect [2] - 20:1,
7:8, 7:13, 8:12, 8:23, 45:5, 45:7, 45:9, 47:1, hesitant [1] - 37:14 Hunt [1] - 28:17 20:10
10:3, 17:20, 18:23, 49:22, 53:9, 53:10, high [1] - 60:16 indicated [2] - 29:11,
19:4, 19:10, 19:23, 53:17, 54:2, 55:24, highly [3] - 24:12, I 57:1
20:1, 20:18, 20:24, 56:3, 56:7, 56:8, 26:23, 30:8 indisputable [1] -
21:2, 21:17, 40:11, 56:18, 56:19, 58:24 Hillman [4] - 38:19, 42:19
57:15, 57:21, 61:16, government's [9] - 39:14, 40:8, 51:17 ideally [1] - 6:24 individual [8] - 12:3,
62:20, 62:24 6:1, 15:5, 29:7, 29:18, Hillman's [1] - 40:8 identification [5] - 12:4, 28:6, 28:10,
Friday [1] - 61:4 50:13, 53:7, 54:24, 7:21, 8:2, 11:4, 11:6, 28:19, 50:7, 54:16,
himself [1] - 59:4
front [1] - 61:23 56:14, 57:5 25:1 61:11
historian [5] - 36:6,
fruitless [1] - 25:9 governmental [2] - identified [5] - 11:10, individuals [8] -
51:19, 52:2, 52:4
full [1] - 5:21 23:11, 23:15 11:16, 22:8, 25:16, 24:8, 24:21, 25:7,
historical [1] - 41:17
furthering [1] - 51:10 Grant [1] - 4:10 31:8 25:10, 25:16, 27:23,
history [16] - 7:16,
furthers [1] - 33:4 grant [1] - 56:15 identify [2] - 14:20, 32:10, 33:11
7:19, 8:17, 10:4,
grounds [2] - 11:9, 21:7 information [4] -
11:20, 20:11, 42:17,
identifying [1] - 61:9
G 19:25 43:19, 45:8, 46:8,
identities [3] - 16:3,
14:12, 16:18, 25:25,
guess [3] - 17:1, 46:15, 51:20, 52:5, 61:9
19:14, 26:3 53:12, 56:1 16:16, 16:18 informed [1] - 53:1
gambled [1] - 30:16 Gulf [1] - 37:24 ignored [1] - 22:24 inherently [1] - 47:24
hit [1] - 53:8
GARDNER [7] - ignoring [1] - 54:10 initial [4] - 12:10,
holding [1] - 44:4
40:14, 40:18, 40:21, imagine [2] - 58:11,
44:8, 56:25, 60:7,
H holds [1] - 39:21 24:24, 25:9, 48:23
60:20 initiative [1] - 26:8
home [1] - 61:10
60:14 immediately [7] -
homosexual [1] - insofar [4] - 9:19,
Gardner [9] - 2:13, hairs [1] - 37:8 9:13, 15:11, 25:14,
10:4 21:22, 35:6, 37:15
4:9, 40:18, 40:19, half [2] - 30:10, 25:19, 34:1, 34:8
homosexuals [1] - installed [1] - 60:24
54:22, 55:10, 55:21, 47:12 impact [3] - 38:24,
31:8 instead [3] - 45:18,
56:9, 56:13 hamstrung [1] - 40:9, 51:6
Honor [81] - 4:8, 51:9, 56:15
Gates [1] - 4:8 26:19 impacting [1] - 51:8
4:18, 5:5, 5:18, 7:8, instructing [1] - 33:9
gay [3] - 13:8, 13:25, hand [1] - 41:25 impacts [1] - 51:15
8:12, 8:23, 17:20, intelligently [1] -
37:23 happy [1] - 53:3 impediments [1] -
17:22, 18:5, 18:11, 54:18
gays [1] - 14:16 hard [3] - 30:22, 42:4
18:16, 18:23, 19:23, intend [7] - 9:7,
general [5] - 15:2, 39:3, 62:2 implemented [1] -
20:18, 21:10, 22:11, 50:15, 55:25, 56:19,
15:3, 16:14, 16:15, hard-pressed [1] - 53:22
23:20, 24:1, 24:4, 60:7, 60:8, 62:17
46:25 39:3 implicates [1] - 31:8
24:11, 25:13, 25:23, intended [1] - 29:12
generous [2] - 29:6, hardly [1] - 32:10 implying [1] - 27:20
26:2, 26:21, 26:25, intent [4] - 9:15,
30:20 harm [2] - 37:18, important [9] -
27:5, 28:12, 29:1, 15:12, 21:19, 50:23
given [8] - 13:14, 37:25 15:22, 15:23, 21:20,
29:4, 29:23, 30:8, interest [8] - 6:17,
17:1, 26:15, 36:20, harmless [2] - 14:21, 23:11, 23:14, 31:9,
31:2, 31:16, 33:12, 15:24, 15:25, 16:1,
37:8, 39:5, 40:5, 16:12 33:4, 46:12, 55:20
33:24, 34:6, 35:22, 31:10, 31:11, 31:12,
41:25 Hastings [2] - 38:19, impressive [1] -
38:8, 40:11, 40:14, 33:6
glean [1] - 35:8 40:8 40:21, 41:7, 41:14, 38:24 interests [2] - 33:5,
gleaned [1] - 41:15 hear [1] - 57:3 42:9, 42:15, 43:15, improper [1] - 33:22 51:10
Goldman [4] - 43:20, heard [4] - 23:19, 44:9, 45:2, 45:6, in-house [1] - 24:18 interject [1] - 21:8
43:25, 44:1, 44:2 42:20, 55:11, 61:21 45:15, 46:8, 46:20, inability [1] - 26:17 interpretations [1] -
governing [1] - 54:3 hearing [7] - 16:6, 50:3, 50:6, 50:15, inadmissible [2] - 19:11
Government [3] - 18:17, 18:19, 19:2, 50:20, 51:3, 51:17, 34:22, 42:6 interrogatory [2] -
39:25, 54:10, 55:23 20:14, 21:6, 25:6 52:10, 52:19, 52:23, inapplicable [1] - 12:11, 16:15
government [57] - hearings [2] - 36:24, 54:19, 54:23, 55:12, 41:1 interrupt [1] - 61:24
9:16, 9:18, 12:25, 37:7 56:2, 56:12, 56:23, inapposite [1] - interview [1] - 47:20
14:17, 15:11, 15:22, hearsay [4] - 10:17, 56:25, 57:15, 58:8, 41:14 introduce [2] - 7:18,
15:23, 17:7, 18:10, 10:18, 10:20, 11:1 58:20, 58:23, 59:13, inappropriate [3] - 9:3
18:19, 23:8, 23:10, heart's [2] - 10:23, 60:1, 60:8, 60:21, 9:5, 48:15, 49:21 introduced [1] -
23:12, 29:6, 29:10, 10:24 61:16, 61:18, 62:20, inclination [1] - 31:3 31:16
29:12, 29:17, 29:22, heightened [1] - 62:25 inclined [3] - 15:10, intrude [1] - 31:7
29:24, 30:4, 30:11, 43:20 hook [1] - 60:5 16:7, 17:9 intrusion [6] - 15:24,
30:12, 30:13, 30:16, held [2] - 41:21, hope [3] - 52:20, include [1] - 58:1 15:25, 31:10, 31:11,
30:22, 31:6, 31:9, 46:21 59:18, 62:5 included [1] - 36:19 33:2, 33:5

6
invalidates [1] - 43:11, 43:13, 43:23, law [13] - 22:9, 6:2, 6:5, 6:8, 6:10, materials [1] - 10:16
37:12 44:25, 53:23, 54:25, 27:14, 31:21, 38:5, 6:13, 7:10, 7:12, 9:19, matter [11] - 4:15,
invalidating [1] - 56:15, 62:18 46:2, 51:18, 53:24, 9:21, 12:6, 14:9, 29:7, 4:17, 6:6, 8:18, 36:17,
41:9 judiciary [1] - 43:23 53:25, 54:3, 54:5, 29:9, 29:12, 29:14, 41:3, 41:22, 42:15,
invitation [3] - 56:8, July [2] - 4:17, 62:6 54:9, 54:11, 61:14 29:15, 29:21, 30:1, 54:15, 57:10, 62:10
59:11, 59:15 jump [2] - 9:25, Lawrence [9] - 31:9, 43:6, 50:13, 62:16, mean [13] - 8:19,
involve [2] - 33:13, 11:17 35:2, 41:14, 41:15, 62:21 9:13, 9:20, 11:11,
45:25 June [4] - 4:1, 15:1, 46:1, 46:4, 53:18, limited [3] - 7:4, 11:17, 17:4, 19:19,
involved [1] - 24:18 16:17, 26:1 54:6 34:24, 39:24 36:5, 39:1, 52:12,
irrelevance [1] - jury [3] - 33:9, 61:24 lawsuit [1] - 28:19 limits [1] - 6:5 54:4, 61:23, 62:14
22:19 Justice [2] - 44:14 lawyer [1] - 51:18 line [1] - 33:6 means [3] - 55:23,
irrelevant [10] - JUSTICE [1] - 2:11 lawyers [4] - 16:24, list [16] - 6:24, 7:6, 56:17
12:22, 13:3, 14:1, justified [2] - 14:21, 30:11, 30:13, 61:23 7:14, 7:21, 8:4, 8:7, meantime [1] - 4:20
14:4, 14:8, 14:18, 16:11 lay [11] - 12:6, 12:8, 8:11, 11:3, 11:4, 11:5, Meekins [9] - 17:15,
27:16, 28:6, 28:25, justify [1] - 16:2 13:12, 14:21, 21:22, 11:11, 11:13, 11:21, 17:18, 17:21, 18:4,
49:23 22:2, 22:16, 22:21, 26:12, 62:9, 62:11 18:8, 18:9, 18:17,
issue [39] - 9:9, K 23:3, 30:10, 52:9 listed [3] - 11:2, 18:21, 18:24
15:18, 16:4, 17:16, LCR [3] - 26:7, 12:10 meet [5] - 26:7,
17:17, 17:22, 18:14, 28:13, 49:3 lives [1] - 31:7 26:10, 26:11, 29:11,
19:4, 19:18, 20:14, Kahn [2] - 2:6, 4:14 leading [1] - 53:15 local [3] - 29:22, 50:2
20:16, 20:17, 21:1, keep [3] - 9:25, learned [1] - 53:20 30:3, 61:8 meeting [2] - 31:18,
21:2, 21:10, 21:17, 11:15, 61:13 least [7] - 6:15, 9:19, lodged [1] - 61:6 52:25
22:18, 23:7, 26:25, keeping [2] - 22:17, 22:3, 29:12, 29:13, Log [3] - 4:4, 4:13, meets [1] - 33:17
27:2, 27:9, 27:10, 35:16 29:25, 35:7 20:4 member [4] - 20:4,
33:3, 36:10, 39:12, keeps [2] - 23:12, leave [1] - 14:3 logic [1] - 43:2 21:7, 21:8, 52:14
40:1, 40:7, 45:13, 33:19 lectern [1] - 55:14 logical [1] - 41:17 members [11] - 9:4,
45:21, 48:4, 48:17, kind [2] - 59:11, left [1] - 16:21 logs [1] - 20:7 9:15, 14:17, 20:16,
49:23, 50:1, 50:12, 59:15 legal [6] - 38:11, longer-developed 28:19, 36:21, 36:24,
50:17, 57:8, 58:5, knowing [3] - 13:4, 42:4, 45:2, 52:19, [1] - 34:3 37:4, 40:10, 48:1
59:5, 62:15 13:7, 13:25 61:18, 61:19 look [10] - 19:1, 20:5, membership [1] -
issued [2] - 19:8, knowledge [2] - legislation [2] - 41:13, 44:17, 45:15, 20:21
55:3 15:16, 39:6 36:14, 45:16 46:15, 47:11, 47:16, memorandum [2] -
issues [19] - 4:22, known [2] - 15:16, legislative [16] - 53:11 53:24, 61:13
6:13, 8:25, 14:19, 15:19 7:16, 7:19, 8:17, 9:20, Look [2] - 26:9, men [2] - 32:1, 51:9
18:19, 19:5, 19:7, Korb [8] - 35:2, 35:7, 11:20, 12:16, 22:24, 44:22 mention [1] - 7:13
19:13, 22:16, 39:4, 46:10, 47:8, 48:4, 22:25, 42:17, 43:19, looked [2] - 36:10, mentioned [1] -
48:6, 48:7, 49:19, 48:8, 52:11, 52:13 45:8, 46:8, 46:15, 44:13 48:20
50:25, 52:5, 52:6, Korb's [6] - 47:3, 53:12, 56:1 looking [1] - 46:8 mentions [1] - 54:12
59:25, 61:18, 61:21 47:4, 47:11, 47:12, legislator [2] - 36:12, looks [3] - 41:15, merit [1] - 42:14
IT [1] - 60:24 47:16, 48:3 45:14 42:16, 45:18 merits [6] - 5:19, 6:4,
Item [1] - 4:3 legislator's [2] - Los [1] - 2:7 12:15, 29:7, 30:5,
items [1] - 60:15 L 36:11, 50:11 54:25
itself [4] - 12:16, legislators [2] - M met [1] - 44:24
25:10, 41:1, 45:23 37:10, 50:24 methodology [3] -
lack [3] - 43:2, 44:3,
44:5 legitimate [3] - 38:20, 38:22, 51:23
J 23:11, 23:14, 45:24 MacCoun [6] - 38:4,
language [3] - 44:13, methods [1] - 39:16
length [1] - 5:21 43:4, 43:7, 46:10,
44:18, 45:20 might [4] - 5:20,
58:5, 59:14
laptops [1] - 60:11 lesbian [2] - 14:17, 11:5, 15:4, 22:5
Jamie [1] - 17:14 Maddow [1] - 47:20
large [1] - 37:23 48:1 militaries [4] - 14:15,
January [1] - 48:24 Major [1] - 4:10
largely [3] - 6:8, less [4] - 11:12, 42:12, 42:20, 42:24
John [2] - 20:3, 21:4 manner [1] - 31:8
45:21, 49:23 14:19, 51:19, 59:4 military [16] - 36:21,
joint [11] - 6:23, 7:6, March [1] - 49:12
larger [1] - 50:8 letting [1] - 28:7 37:19, 37:22, 37:25,
7:14, 7:21, 8:4, 8:6, marked [2] - 11:4,
last [7] - 18:17, level [1] - 38:15 38:25, 40:2, 43:22,
8:11, 8:19, 11:13, 11:6
18:19, 22:2, 38:16, Lieutenant [2] - 20:8, 44:6, 46:5, 51:19,
11:21, 62:9 marshals [1] - 59:6
20:15 51:20, 51:21, 52:5,
Josh [1] - 4:9 40:7, 49:20, 55:16 Martin [1] - 17:15
light [5] - 29:7, 52:6, 52:14
Joshua [1] - 2:13 last-ditch [1] - 49:20 Massachusetts [1] -
29:18, 33:7, 56:6, Miller [2] - 2:5, 4:14
Judge [1] - 21:6 late [3] - 16:12, 18:20 2:14
59:6 mind [5] - 9:13, 10:7,
judgment [11] - latest [1] - 30:3 material [2] - 28:25,
likely [1] - 53:1 35:16, 36:25, 61:13
17:16, 20:12, 21:6, latter [1] - 24:8 36:19
limine [24] - 5:25, mischaracterizatio

7
n [1] - 35:11 40:18, 40:21, 44:8, 8:8, 8:15, 62:11 33:15, 34:25, 36:22, overarching [2] -
mission [1] - 5:6 50:6, 52:18, 55:7, noted [1] - 48:8 37:6, 39:20, 40:7, 8:16, 22:19
misstate [1] - 12:9 55:16, 55:19, 56:25, nothing [5] - 32:4, 41:10, 43:17, 45:1, overruled [2] - 8:18,
mistaken [1] - 25:15 57:15, 57:21, 58:8, 32:7, 33:22, 47:13, 54:21, 56:25, 59:22, 41:18
moment [3] - 10:1, 58:15, 58:20, 58:23, 62:25 60:14 overworked [1] -
22:12, 55:11 59:13, 60:1, 60:7, notice [1] - 15:9 ones [3] - 11:23, 59:7
Monday [1] - 4:1 60:14, 60:20, 61:16, notified [1] - 15:11 33:24 own [2] - 60:5, 60:11
month [1] - 16:16 62:20, 62:24, 62:25 notion [2] - 42:5, oOo [1] - 4:2
moral [1] - 14:15 multiple [1] - 41:25 46:11 open [1] - 14:16 P
morale [1] - 32:5 must [9] - 8:19, Number [2] - 4:3, 4:4 opening [6] - 61:12,
morning [1] - 61:1 15:22, 15:23, 15:24, number [7] - 6:6, 61:15, 61:20, 62:4,
15:25, 31:9, 31:10, 62:7 P.M [1] - 4:1
most [8] - 6:10, 9:10, 6:25, 8:3, 29:9, 32:13,
31:11, 33:1 37:21, 37:23 openings [1] - 58:1 Page [2] - 3:2, 47:15
9:16, 29:8, 36:8,
numbers [5] - 15:1, operating [1] - 8:8 pages [1] - 57:8
37:16, 37:19, 39:11
paid [1] - 20:3
mostly [2] - 4:23, N 16:19, 26:1, 61:10 opining [1] - 36:18
numerous [1] - opinion [29] - 12:2, paper [1] - 6:17
62:22
29:15 13:4, 13:24, 14:6, papers [14] - 18:2,
motion [47] - 6:15,
name [6] - 18:12, 20:25, 24:2, 26:25,
6:16, 6:20, 7:10, 8:16, NW [1] - 2:14 35:10, 35:14, 35:17,
21:7, 25:1, 37:1, 37:3, 27:15, 30:6, 32:14,
9:21, 10:1, 11:17, 35:19, 36:4, 36:9,
38:4 32:25, 35:5, 40:25,
11:18, 11:20, 12:3,
named [1] - 21:8 O 36:16, 36:23, 37:7,
44:1, 52:24, 53:7,
12:6, 12:13, 13:11, 37:9, 37:11, 38:2,
names [6] - 14:25, 53:15
13:12, 14:5, 14:9, 39:21, 39:24, 43:9,
16:19, 25:23, 26:8, obey [1] - 59:10 parameters [1] - 39:4
17:9, 17:16, 18:2, 47:3, 47:4, 47:5,
26:13, 26:15 objected [1] - 39:20 Parker [3] - 2:13, 4:9,
18:3, 18:5, 18:23, 47:16, 48:20, 48:21,
narrowly [1] - 44:3 objection [7] - 8:16, 40:17
19:19, 19:20, 20:12, 49:4, 49:14, 49:21,
Nathan [1] - 35:21 8:18, 9:14, 11:19, 52:20 part [9] - 6:13, 15:18,
21:16, 21:22, 22:4,
Nathaniel [2] - 35:22, 17:25, 22:19, 61:25 opinions [11] - 18:17, 28:8, 31:25,
23:15, 25:2, 27:12,
35:23 objectionable [1] - 35:25, 37:13, 38:10, 39:11, 50:12, 50:24,
27:15, 34:17, 35:6,
National [1] - 35:23 9:17 38:11, 38:13, 38:22, 55:5
35:9, 37:20, 43:6,
nature [1] - 9:2 objections [8] - 8:22, 39:19, 48:11, 48:25, participation [1] -
48:9, 48:20, 50:13,
necessarily [3] - 8:24, 8:25, 12:4, 50:1 28:19
53:6, 53:23, 54:24,
10:23, 35:5, 37:12 37:16, 37:19, 38:2, opportunity [6] - particular [3] -
55:4, 57:13, 62:18
necessary [7] - 6:15, 47:1 30:14, 30:15, 30:24, 51:20, 52:2, 61:17
motions [24] - 5:25,
14:9, 15:25, 16:5, objective [2] - 23:11, 50:1, 56:3, 57:4 particularly [5] -
6:2, 6:5, 6:7, 6:10,
31:11, 33:5, 43:21 23:15 opposite [1] - 48:13 18:6, 26:22, 43:4,
6:13, 7:12, 9:7, 9:19,
11:25, 12:5, 13:11, neck [1] - 22:11 obligation [2] - 59:3, opposition [7] - 43:22, 52:4
23:16, 29:7, 29:9, need [10] - 8:25, 59:22 15:14, 21:16, 25:2, parties [7] - 7:24,
29:12, 29:13, 29:14, 17:25, 28:14, 43:17, obviously [8] - 7:14, 29:20, 52:24, 53:6, 8:15, 15:2, 15:9, 18:3,
29:15, 29:21, 30:1, 44:15, 45:10, 56:11, 21:19, 24:3, 24:17, 53:23 61:12, 61:21
57:12, 62:15, 62:21 56:13, 56:20, 57:10 24:25, 26:16, 57:16, order [16] - 6:2, 6:5, parts [2] - 35:25,
motivation [1] - needed [3] - 17:3, 61:17 14:20, 17:5, 18:18, 50:17
36:13 28:23, 44:5 occupation [1] - 19:1, 19:8, 22:3, party [4] - 10:16,
motivations [2] - 9:3, never [2] - 18:24, 59:19 23:25, 32:19, 49:25, 20:16, 27:19, 57:17
45:15 59:5 OF [1] - 2:11 56:3, 56:18, 61:19, party's [1] - 15:16
move [4] - 12:5, New [2] - 46:12, offer [4] - 42:8, 62:21 passed [2] - 30:18,
21:20, 34:17, 57:11 47:18 48:25, 49:4, 49:20 ordinance [2] - 41:9, 53:21
moved [1] - 11:11 new [1] - 49:17 offered [3] - 7:18, 41:20 past [2] - 29:19,
MR [64] - 4:7, 4:12, next [5] - 25:5, 30:15, 43:7 organization [2] - 31:19
4:18, 5:5, 5:13, 5:18, 25:24, 26:3, 49:5, offering [3] - 49:13, 14:8, 52:15 Patrick [1] - 4:10
7:8, 7:13, 8:12, 8:23, 57:10 51:11, 51:12 organizational [1] - pattern [1] - 30:3
10:3, 17:20, 17:22, Nicholson [2] - offers [1] - 38:11 13:2 paul [1] - 2:12
18:5, 18:10, 18:15, 20:15, 21:4 once [7] - 52:9, 53:8, original [1] - 49:1 Paul [1] - 4:7
18:23, 19:4, 19:10, night [1] - 49:2 54:10, 54:14, 56:12, otherwise [5] - 5:2, people [9] - 25:12,
19:23, 20:1, 20:18, non-30(b)(6 [1] - 56:16, 56:18 12:11, 22:6, 34:25, 26:17, 26:21, 31:20,
20:24, 21:2, 21:17, 23:21 one [32] - 5:1, 5:23, 47:21 51:5, 53:20, 61:3
22:11, 22:14, 23:20, nonjury [2] - 5:16, 6:7, 7:7, 7:10, 8:10, ought [2] - 6:14, 52:8 per [2] - 34:25, 48:22
24:1, 25:22, 26:2, 11:22 10:7, 12:9, 14:20, outside [3] - 7:16, percent [1] - 51:11
27:2, 29:4, 33:12, normally [1] - 11:2 15:1, 16:23, 18:18, 57:10, 58:3 perhaps [8] - 4:23,
33:19, 34:5, 35:22, note [2] - 5:13, 5:18 21:5, 22:4, 27:17, overall [2] - 27:10, 6:7, 36:17, 36:22,
38:8, 40:11, 40:14, notebooks [4] - 8:7, 28:12, 28:16, 32:2, 39:5 51:5, 51:25, 52:7,

8
59:14 38:24, 40:1, 40:4, prevent [1] - 23:17 60:14 43:10, 58:14, 58:15,
period [1] - 41:23 44:16, 44:17, 51:9, primary [2] - 35:10, Protection [5] - 39:1, 58:19
permitting [1] - 51:13, 51:15 35:14 39:2, 51:3, 51:4, rank [2] - 32:2, 32:3
28:21 portions [2] - 50:9, principle [1] - 42:2 51:12 rather [3] - 13:2,
person [4] - 12:22, 60:17 principles [1] - 39:16 prove [3] - 23:9, 17:6, 46:13
13:9, 59:1, 60:24 position [6] - 15:5, privacy [10] - 13:9, 23:13, 31:13 rational [2] - 34:21,
personal [8] - 13:1, 30:17, 44:22, 53:17, 45:25, 48:21, 48:25, provide [2] - 42:10, 47:9
13:3, 13:4, 13:9, 56:14, 58:17 49:4, 49:10, 49:11, 50:22 rationale [1] - 42:13
13:23, 14:6, 31:7, possible [1] - 58:12 49:14, 49:19, 53:2 provided [3] - 13:10, reached [2] - 42:21,
61:9 possibly [1] - 53:13 private [2] - 31:7, 15:1, 26:7 43:11
persons [3] - 15:3, post [1] - 46:4 41:20 Public [1] - 38:6 read [4] - 6:3, 36:15,
32:14, 61:11 post-Lawrence [1] - privilege [8] - 9:20, purports [1] - 47:12 56:17, 61:13
persuaded [3] - 46:4 9:21, 36:11, 36:14, purpose [4] - 31:16, readiness [3] -
21:24, 32:12, 59:9 postenactment [1] - 45:14, 50:11, 50:18, 39:21, 42:7, 48:12 37:19, 38:1, 40:3
persuasive [1] - 22:7 14:13 50:21 purposes [10] - 7:22, reading [3] - 10:8,
Philips [3] - 45:22, potential [1] - 50:10 privileged [2] - 22:17, 23:6, 32:5, 13:10, 48:12
54:4, 54:5 PowerPoints [1] - 36:17, 37:10 33:10, 40:4, 45:18, ready [1] - 60:25
phone [3] - 15:1, 60:6 probative [1] - 47:2 45:19, 51:13, 62:14 real [1] - 38:18
16:19, 26:1 practical [1] - 8:18 problem [3] - 5:22, pursuant [1] - 31:21 really [18] - 7:2, 7:3,
pick [2] - 5:15, 5:17 practice [3] - 33:15, 21:13, 24:20 pursue [1] - 29:12 9:24, 9:25, 13:19,
pieces [1] - 12:4 53:22, 61:23 problems [1] - 5:2 push [1] - 5:20 13:21, 14:9, 23:16,
place [1] - 5:14 prayer [2] - 50:23, proceed [2] - 6:23, put [4] - 15:9, 53:5, 30:5, 35:11, 38:10,
plain [5] - 44:13, 50:25 21:8 55:13, 60:15 38:19, 44:2, 51:9,
44:17, 45:20, 48:12, pre [1] - 52:25 proceedings [1] - putting [1] - 23:17 54:15, 55:20, 57:6
53:17 pre-deposition [1] - 37:23 realtime [2] - 60:8,
plaintiff [31] - 4:13, 52:25 Proceedings........... Q 60:11
15:8, 16:4, 16:13, preclude [1] - 18:21 ............................ [1] - reason [2] - 16:5,
16:23, 16:25, 21:15, precluded [1] - 13:7 3:3 35:15
22:22, 23:9, 23:13, qualifications [2] - reasonable [1] -
prefer [2] - 23:25, process [1] - 22:25
23:17, 24:14, 24:21, 10:15, 38:24 30:20
40:15 produce [1] - 56:10
25:9, 26:6, 27:13, qualified [2] - 39:8, reasoning [3] - 37:9,
preferable [1] - product [1] - 39:15
33:17, 39:17, 41:4, 54:13 37:13, 37:15
58:25 profession [1] -
41:23, 42:18, 42:22, qualify [1] - 52:8 reasons [4] - 36:13,
prejudice [2] - 12:3, 58:16
43:5, 43:11, 43:15, questioned [1] - 45:22, 45:24, 55:8
16:20 Professor [15] - 10:2,
44:21, 45:1, 45:11, 36:13 rebuttal [1] - 49:21
prejudiced [1] - 10:10, 35:7, 36:16,
46:9, 48:10, 49:25 questions [4] - recalling [1] - 5:4
26:17 38:19, 38:23, 39:10,
Plaintiff [1] - 2:3 13:13, 49:23, 50:19, recast [1] - 48:11
prejudicial [3] - 39:13, 39:14, 50:10,
plaintiff's [6] - 22:20, 53:1
24:12, 26:23, 30:9 50:16, 52:11, 52:13, receive [1] - 59:11
26:4, 34:19, 38:21, 52:22, 59:14 quick [1] - 57:1
prepare [1] - 49:6 receiving [1] - 28:9
42:10, 42:25 professor [5] - 10:3, quickly [3] - 35:3,
prepared [1] - 7:6 recent [1] - 29:8
plan [2] - 5:14, 5:24 38:5, 40:8, 51:18, 47:3, 48:22
preparing [1] - 24:13 recently [1] - 58:11
point [20] - 15:11, 58:16 quite [1] - 44:3
present [7] - 16:24, recognized [2] -
17:1, 21:5, 25:24, proffer [3] - 15:14, quote [3] - 28:17,
24:16, 27:23, 29:10, 37:3, 52:14
26:3, 26:13, 26:22, 17:1, 22:2 48:19, 49:16
55:25, 56:3, 56:7 record [8] - 12:16,
28:12, 30:1, 30:2, proffering [1] - 22:23 quotes [1] - 14:3
presentation [1] - 22:17, 28:24, 34:3,
34:14, 39:1, 42:25, 33:14 proffers [1] - 22:3 34:10, 36:7, 37:15,
45:2, 45:11, 48:18, presented [2] - 27:8, Programs [1] - 2:12 R 44:5
51:2, 52:9, 55:19, 54:18 prohibits [1] - 61:19 recycling [4] - 6:17,
57:1 presenting [4] - prong [1] - 47:22 6:18, 62:14
Rachael [1] - 47:20
pointed [2] - 16:23, 24:12, 27:4, 27:9, pronouncing [1] - redacting [1] - 61:9
raise [6] - 6:13,
21:5 45:5 38:4 refer [1] - 18:6
19:24, 19:25, 20:12,
points [4] - 15:15, presents [3] - 54:16, pronunciation [1] - referred [1] - 18:3
21:10, 48:18
39:25, 40:15, 53:16 61:16, 61:18 38:18 refuse [2] - 20:6
raised [17] - 9:6,
policies [1] - 51:8 pressed [4] - 26:6, proof [5] - 17:5, 42:9, refutes [1] - 46:11
18:19, 19:20, 19:21,
Policy [1] - 38:6 26:11, 26:14, 39:3 44:24, 44:25, 58:9 regard [2] - 25:3,
19:25, 20:13, 20:17,
policy [22] - 12:19, presumably [3] - proper [1] - 9:2 25:7
20:23, 20:24, 20:25,
15:23, 23:5, 23:10, 26:14, 28:24, 49:17 properly [1] - 9:6 regarding [8] - 9:14,
21:17, 21:24, 35:5,
32:6, 32:22, 33:3, pretrial [7] - 4:16, proposed [2] - 20:5, 12:18, 12:21, 14:12,
39:4, 40:7, 40:15
33:4, 33:11, 34:20, 7:1, 26:7, 26:10, 53:24 23:4, 27:24, 37:17,
raising [1] - 25:8
35:10, 37:18, 37:25, 48:22, 49:25, 53:23 proprietary [1] - 38:12
RAND [5] - 43:7,

9
regardless [2] - 48:23, 49:1, 49:13, room [1] - 2:15 seeking [3] - 12:7, similarly [1] - 52:11
40:23, 46:1 49:16, 51:25, 52:22, routinely [1] - 43:23 27:22, 34:18 simple [1] - 20:7
regards [1] - 52:22 53:3 rule [5] - 11:22, seeks [2] - 14:5, simply [6] - 24:23,
regularly [1] - 61:23 reported [1] - 37:4 11:24, 14:11, 30:3, 14:17 27:5, 28:11, 40:25,
regulation [3] - representative [3] - 61:8 seem [5] - 17:11, 41:6, 48:15
44:10, 44:13, 44:18 13:3, 31:17, 57:17 Rule [8] - 14:22, 20:7, 27:24, 28:20, SIMPSON [8] - 18:5,
regurgitation [1] - Representative [2] - 15:15, 22:9, 34:25, 50:23 22:11, 22:14, 23:20,
47:13 36:25, 37:1 39:6, 49:15, 49:22, seldom [1] - 34:9 24:1, 25:22, 26:2,
rehash [1] - 48:2 represents [1] - 49:24 sending [1] - 20:13 27:2
Rehnquist [2] - 12:14 ruled [9] - 17:20, sense [3] - 44:17, Simpson [3] - 2:14,
44:14 Republicans [3] - 18:17, 18:19, 18:23, 51:6, 51:7 4:9, 40:22
relate [1] - 9:10 4:4, 4:13, 20:4 18:24, 19:5, 19:6, separate [1] - 62:3 single [2] - 8:5, 8:9
related [3] - 21:10, request [2] - 17:21, 19:12, 27:11 series [1] - 30:3 situation [1] - 52:2
48:21, 51:16 18:24 Rules [1] - 34:22 served [2] - 58:8, six [12] - 12:18,
relates [1] - 21:3 requested [1] - 28:18 rules [5] - 29:8, 58:11 12:23, 23:2, 23:3,
relation [2] - 25:8, requesting [1] - 56:4 29:19, 29:22, 35:17 service [6] - 10:4, 24:8, 27:4, 27:23,
27:7 required [5] - 8:6, ruling [9] - 14:17, 14:16, 40:10, 48:1, 28:9, 28:11, 31:20,
relationship [2] - 21:7, 28:20, 28:23, 20:13, 20:23, 54:24, 52:13, 58:9 32:10, 32:15
13:8, 14:1 39:5 54:25, 55:3, 55:4, servicemember [2] - slightly [1] - 16:18
relatively [2] - 17:2, requirement [2] - 62:15, 62:17 13:7, 13:25 slow [2] - 34:4, 55:13
32:15 39:9, 39:15 Ryan [2] - 2:13, 4:9 servicemembers [8] slowly [1] - 55:19
relevance [3] - 8:6, requires [2] - 15:15, - 12:18, 15:4, 24:25, smoothly [1] - 60:25
23:6, 47:1 28:18 S 25:18, 27:4, 27:7, so.. [1] - 59:18
relevant [8] - 7:17, research [6] - 10:14, 27:8, 31:15 social [3] - 38:12,
16:6, 22:21, 32:19, 10:16, 10:19, 14:12, servicemen [1] - 52:1, 61:10
sake [1] - 6:16
32:24, 34:23, 42:24, 59:8, 59:13 37:23 sociologist [3] -
Salerno [1] - 46:23
46:11 resisted [1] - 26:10 serving [1] - 38:25 38:8, 38:9, 51:14
satisfied [1] - 39:9
reliability [2] - 47:24, resolve [1] - 41:11 set [8] - 4:17, 8:7, software [1] - 60:15
sausage [1] - 36:12
48:4 resolved [3] - 9:1, 8:9, 8:19, 15:22, 61:2, solely [2] - 32:21,
saw [3] - 21:13,
reliable [2] - 34:23, 19:2, 45:22 62:4, 62:6 32:22
29:20, 31:24
39:16 respect [8] - 6:16, seven [5] - 16:24, someone [1] - 13:17
10:1, 17:18, 17:23, schedule [3] - 17:5, 24:15, 30:11, 34:19,
relied [5] - 10:15, sometimes [2] -
20:18, 34:17, 45:13, 17:7, 48:22 35:2
10:19, 11:8, 47:17 13:19, 13:20
51:2 scheduled [2] - 5:6, several [3] - 31:19,
relief [1] - 28:18 son [1] - 5:7
respects [1] - 6:3 20:14 44:1, 50:6
relies [1] - 47:19 sorry [6] - 18:13,
response [4] - 29:24, scheduling [3] - sex [1] - 41:20
relieved [1] - 38:17 18:25, 19:24, 25:20,
30:1, 30:2, 56:7 4:24, 5:2, 5:6 sexual [1] - 45:25
reluctant [1] - 59:17 34:5, 40:19
responses [2] - Schiavelli [1] - 21:6
rely [6] - 12:1, 24:24, shifts [1] - 45:4 sort [3] - 36:16,
12:11, 16:15 school [2] - 50:23,
25:7, 25:10, 25:17, short [5] - 6:24, 17:2, 48:10, 59:23
responsible [1] - 50:25
52:4 32:16, 61:12, 61:14 sorts [1] - 43:11
57:24 School [1] - 38:6
relying [4] - 28:13, shorthand [1] - sources [1] - 10:16
restrictions [1] - scientific [2] - 43:21, 14:14
40:2, 40:4, 45:7 specialized [1] - 39:6
15:23 52:3 shortly [1] - 20:14
remain [2] - 46:2, specifically [1] -
return [2] - 8:14, scientist [1] - 52:2
58:3 show [12] - 23:5, 32:3
62:12 Scott [2] - 2:14, 4:9 31:17, 31:25, 33:16,
remember [6] - 10:8, specified [1] - 21:14
revealed [1] - 45:20 screen [1] - 60:16 33:17, 34:10, 43:2,
19:22, 41:7, 44:1, specifies [1] - 31:6
44:3, 57:7 reveals [3] - 37:15, scrutiny [1] - 43:20 49:25, 51:13, 55:23, spent [1] - 57:7
remind [1] - 56:2 46:23, 48:13 second [2] - 12:13, 56:18, 56:19 splitting [1] - 37:8
reversed [1] - 46:18 39:15 showing [4] - 32:22,
repeat [3] - 24:2, sponte [3] - 19:22,
30:6, 40:22 review [2] - 15:10, Second [1] - 46:18 32:24, 33:2, 33:18 20:13, 56:16
repeated [1] - 29:19 40:24 Secretary [2] - 4:8, side [11] - 5:1, 7:18, squarely [1] - 20:25
revised [5] - 48:19, 52:16 7:20, 8:13, 11:7,
repeatedly [3] - stage [2] - 62:4, 62:6
27:13, 48:4, 48:8 48:20, 49:13, 50:1, section [1] - 47:19 24:16, 57:24, 60:3, stand [3] - 9:24,
repetitive [1] - 36:3 52:22 security [1] - 61:10 60:19, 61:25, 62:19 57:19, 57:22
reply [4] - 18:6, rid [2] - 37:18, 37:25 see [9] - 7:21, 7:22, sides [4] - 12:9, standard [27] -
29:23, 43:6, 53:7 riding [1] - 59:23 9:20, 29:23, 39:3, 22:13, 55:17, 57:4 15:10, 15:20, 15:21,
report [17] - 10:10, rights [1] - 31:8 47:9, 51:10, 55:14, sign [1] - 55:14 16:7, 22:18, 31:4,
rise [1] - 38:15 61:17 significantly [3] -
22:25, 36:19, 37:6, 31:5, 31:6, 31:14,
43:7, 43:10, 47:11, Riverside [1] - 4:1 seek [3] - 9:2, 14:6, 15:24, 31:10, 33:4 31:18, 40:24, 40:25,
47:13, 48:13, 48:19, Robert [1] - 38:4 42:8 similar [1] - 60:20 44:23, 55:1, 55:2,

10
55:5, 55:6, 55:12, subjects [2] - 7:10, 9:6, 10:7, 18:2, 18:9, 16:17, 16:19, 17:6,
T
55:22, 56:5, 56:9, 51:16 18:12, 18:25, 19:8, 24:6, 24:8, 24:10,
56:16, 57:2, 57:4, submit [4] - 24:4, 19:14, 19:24, 20:10, 24:13, 26:20, 26:22,
57:5, 57:6, 57:9 24:11, 26:21, 29:1 table [2] - 30:12, 20:22, 21:1, 21:12, 28:22, 31:14, 38:16,
standard's [1] - 56:6 submits [1] - 49:13 45:21 21:19, 22:13, 22:15, 41:16, 45:11, 52:8,
standing [18] - 5:19, submitted [5] - task [1] - 38:12 23:25, 25:20, 25:25, 55:14, 55:25, 56:11,
6:2, 6:5, 17:16, 18:18, 17:15, 43:8, 48:23, tech [1] - 60:16 27:1, 29:2, 32:12, 56:13, 56:20, 58:9,
19:5, 19:8, 19:9, 52:24, 62:9 telephone [1] - 61:10 33:16, 34:4, 34:16, 59:18, 61:4, 61:7,
19:12, 19:15, 19:16, subparts [1] - 29:16 tend [1] - 58:12 35:23, 38:9, 40:12, 61:22, 61:24
19:20, 19:21, 20:8, subpoena [5] - 58:9, tension [1] - 45:25 40:17, 40:19, 43:25, Trial [1] - 60:12
20:17, 28:13, 28:16, 58:11, 58:12, 59:11 tentative [2] - 20:13, 50:4, 52:16, 55:2, TrialDirector [3] -
61:19 substantially [2] - 20:22 55:13, 55:17, 56:24, 60:7, 60:10, 60:14
stare [1] - 41:19 14:21, 16:11 term [2] - 14:15, 51:5 57:3, 57:20, 57:23, trials [1] - 34:12
start [3] - 4:19, 4:21, substantiate [1] - terms [9] - 16:14, 58:14, 58:17, 58:21, tried [1] - 33:8
24:6 20:8 16:16, 17:5, 33:10, 58:24, 59:16, 60:2, trier [1] - 39:7
started [1] - 30:5 succeeding [1] - 41:9, 53:20, 58:7, 60:12, 60:18, 60:22, trip [1] - 5:6
state [4] - 4:6, 35:9, 33:18 58:18, 59:3 61:22, 62:22 troop [1] - 32:5
35:18, 37:11 suffice [1] - 15:5 test [1] - 43:20 themselves [1] - troubling [1] - 36:8
statement [5] - 15:2, sufficient [2] - 25:4, testified [3] - 46:10, 31:1 true [6] - 25:13,
20:2, 61:13, 61:15, 39:11 49:3, 49:18 theory [2] - 10:5, 29:18, 38:15, 43:14,
61:20 suggest [3] - 27:5, testify [19] - 10:3, 10:6 43:17, 59:1
statements [2] - 30:9, 51:24 10:13, 12:18, 13:22, therefore [2] - 42:12, try [2] - 11:22, 26:23
36:23, 61:20 suggesting [1] - 15:4, 16:9, 17:6, 23:2, 53:13 trying [10] - 11:15,
STATES [1] - 2:11 46:14 23:4, 35:15, 35:20, thinking [2] - 10:11, 23:9, 26:21, 33:20,
States [4] - 4:5, 4:8, Suite [1] - 2:7 36:4, 36:7, 37:13, 24:9 34:6, 36:11, 44:1,
30:9, 39:22 sully [1] - 28:24 37:14, 52:6, 58:7, third [1] - 10:16 44:3, 53:9, 53:10
states [1] - 23:10 summary [8] - 17:16, 58:18, 58:25 third-party [1] - turning [1] - 30:5
stature [1] - 52:13 20:12, 21:6, 44:25, testifying [6] - 10:12, 10:16 twice [1] - 54:5
statute [21] - 7:16, 53:23, 54:24, 56:15, 18:22, 40:9, 51:14, three [12] - 7:11, two [14] - 5:12, 5:23,
12:15, 12:22, 27:19, 62:18 51:18, 51:19 12:25, 17:12, 17:14, 11:25, 12:5, 13:11,
27:20, 27:24, 28:5, supervisors [1] - testimony [75] - 23:15, 24:16, 29:14, 16:21, 17:12, 24:15,
28:10, 28:15, 33:14, 32:4 4:25, 9:10, 9:13, 9:14, 29:15, 29:16, 29:21, 27:6, 38:6, 38:7,
34:1, 34:15, 41:6, supplement [3] - 9:17, 12:7, 12:17, 29:23, 49:12 43:17, 46:9, 54:12
45:7, 45:19, 45:20, 15:6, 49:16, 50:21 12:21, 12:23, 13:1, throughout [2] - typed [1] - 35:23
46:8, 46:16, 53:20, supplemental [4] - 13:2, 13:6, 13:14, 53:14, 53:16
14:5, 14:6, 15:15, ties [1] - 27:8
53:21 44:21, 45:12, 54:1, U
stay [3] - 36:12, 57:8, 56:4 16:5, 16:14, 17:2, timing [2] - 21:1,
57:25 supplementing [1] - 21:25, 22:4, 22:7, 21:2
step [1] - 41:10 22:10, 23:6, 24:7, today [7] - 20:3, UC [1] - 58:16
53:3
stick [1] - 22:11 24:24, 25:18, 27:4, 30:11, 31:18, 34:21, ultimate [1] - 35:18
support [3] - 41:5,
still [5] - 8:6, 8:25, 27:8, 27:23, 28:14, 55:4, 56:18, 58:10 ultimately [4] -
42:11, 51:12
16:21, 20:6, 36:10 28:20, 28:22, 31:15, tomorrow [1] - 59:18 40:24, 42:21, 42:24,
supports [1] - 37:24
stipulating [1] - 8:20 32:16, 32:17, 32:19, took [3] - 24:23, 46:17
supposed [1] - 6:22
stood [1] - 37:1 32:20, 33:1, 33:7, 26:8, 44:22 unavailable [4] -
supposedly [1] -
stories [4] - 27:23, 34:20, 34:22, 35:8, topic [1] - 34:25 58:6, 59:2, 59:4, 59:9
51:10
28:6, 28:10, 31:22 36:20, 36:22, 37:7, touched [1] - 45:14 unclear [1] - 19:11
Supreme [4] - 28:17,
straight [1] - 11:15 37:17, 39:3, 39:15, traditional [1] - 52:4 unconstitutional [7]
41:8, 43:21, 44:12
39:20, 40:5, 40:8, trained [1] - 36:6 - 27:21, 31:21, 32:23,
Street [1] - 2:6 surprise [1] - 16:20
41:4, 41:9, 42:4, 42:6, transcript [2] - 33:17, 35:10, 41:21,
strike [1] - 18:24 survives [1] - 56:5
42:8, 42:20, 42:21, 13:10, 35:11 47:7
struck [1] - 48:21 susceptible [1] -
42:22, 43:11, 43:12, transmit [1] - 60:9 uncontroverted [1] -
studies [1] - 43:21 19:10
44:15, 46:11, 46:13, treated [1] - 30:23 20:2
study [1] - 33:24 suspect [1] - 47:24
47:21, 50:9, 50:11, treatment [1] - 48:1 under [17] - 8:8,
sua [3] - 19:22, suspended [1] -
50:17, 51:21, 57:14, 12:19, 14:21, 22:9,
20:13, 56:16 37:22 triable [3] - 19:5,
58:2, 58:4 34:22, 34:24, 35:16,
subconclusions [1] synthesizes [1] - 19:7, 19:12
Texas [1] - 41:19 39:6, 39:15, 43:20,
- 37:22 54:17 trial [44] - 4:17, 4:19,
text [1] - 46:15 4:21, 4:24, 5:16, 6:8, 46:23, 47:1, 47:22,
subject [4] - 6:6,
THE [61] - 4:3, 4:11, 6:9, 6:14, 6:19, 7:25, 48:17, 49:22, 58:6
13:24, 41:22, 50:8
4:15, 4:19, 5:12, 5:15, 11:15, 11:22, 13:22, underlies [1] - 38:22
subjective [2] - 9:3,
5:22, 7:11, 8:1, 8:14, 14:9, 14:18, 14:24, undermined [1] -
9:15

11
42:14 17:10, 17:14, 19:16, 47:18

W
undermining [1] - 21:23, 22:2, 22:16,
32:8 22:21, 23:2, 23:3,
underpinnings [1] - waiting [2] - 54:23, 23:21, 23:24, 26:8,
41:17 57:10 26:13, 26:20, 30:10,
understood [1] - waive [3] - 62:3, 62:7 34:18, 34:20, 35:2,
55:21 waivers [1] - 14:15 39:8, 39:12, 46:13,
unfairly [1] - 30:23 walk [1] - 8:23 47:14, 48:14, 57:13,
unforeseen [1] - wants [4] - 42:22, 57:17, 57:25, 58:3,
4:20 43:12, 43:15, 48:10 59:17
unique [1] - 46:5 War [1] - 37:24 witnesses' [2] - 16:3,
unit [9] - 32:5, 38:12, Washington [1] - 16:5
40:3, 42:12, 42:14, 2:15 Witt [33] - 15:10,
43:3, 43:9, 43:13, waste [1] - 28:21 15:20, 15:21, 16:7,
45:25 ways [2] - 23:9, 22:18, 31:4, 31:5,
United [4] - 4:5, 4:8, 53:10 31:14, 31:18, 40:25,
30:9, 39:22 weak [1] - 19:17 41:1, 44:23, 45:3,
uNITED [1] - 2:11 week [10] - 4:25, 5:2, 45:23, 54:1, 54:8,
unnecessary [3] - 5:3, 5:10, 5:17, 26:22, 54:9, 54:11, 55:1,
6:9, 6:11 55:5, 62:18, 62:22, 55:2, 55:5, 55:6,
unwilling [1] - 7:20 62:23 55:12, 55:22, 56:5,
up [21] - 5:15, 5:25, weeks [5] - 5:12, 56:6, 56:9, 56:16,
6:20, 8:6, 14:19, 5:23, 16:19, 16:21, 57:2, 57:4, 57:5, 57:6,
20:20, 28:24, 29:16, 49:12 57:9
33:20, 49:11, 52:8, weighed [1] - 42:21 women [8] - 32:1,
53:15, 55:10, 57:11, weighing [1] - 48:7 37:23, 38:25, 51:8,
59:5, 60:5, 60:15, weight [4] - 37:17, 51:11, 51:15, 51:20,
60:17, 61:2, 61:4, 37:20, 38:3, 38:14 52:5
62:10 West [1] - 2:6 WOODS [24] - 4:12,
upheld [1] - 34:12 whatsoever [1] - 4:18, 17:22, 18:10,
useful [1] - 54:18 48:24 18:15, 29:4, 33:12,
utilized [1] - 41:5 whichever [1] - 33:19, 34:5, 35:22,
23:25 38:8, 50:6, 52:18,
55:7, 55:16, 55:19,
V while.. [1] - 57:20
58:8, 58:15, 58:20,
White [1] - 4:12
WHITE [1] - 2:4 58:23, 59:13, 60:1,
vacation [2] - 5:10, whole [2] - 27:9, 60:20, 62:25
5:24 47:12 Woods [4] - 2:5,
vacuum [2] - 27:18, win [1] - 56:20 4:12, 29:3, 50:5
28:3 wisdom [6] - 40:1, word [1] - 36:12
variety [1] - 19:11 42:6, 43:23, 48:5, wording [2] - 44:2,
various [1] - 38:11 48:7, 48:9 44:4
vehicle [1] - 59:23 wish [2] - 19:15, words [3] - 23:8,
versus [1] - 4:4 23:19 41:18, 53:10
videotaped [1] - witness [24] - 9:24, workable [1] - 17:13
58:22 13:2, 13:11, 13:12, works [3] - 34:9,
view [1] - 18:16 13:15, 13:16, 13:17, 58:14, 60:25
viewpoint [1] - 51:15 13:21, 14:7, 18:1, worthy [1] - 56:21
views [1] - 13:3 34:25, 39:21, 40:2, written [2] - 55:3,
violate [2] - 6:2, 57:19, 57:20, 57:21, 62:15
50:21 58:14, 58:25, 59:2,
violation [4] - 29:8, 59:10, 59:16, 59:25, Y
29:21, 49:24, 50:18 62:9
violations [2] - witness's [2] - 13:8,
Yamika [2] - 44:7,
29:19, 30:4 15:14
44:8
volunteered [1] - witnesses [41] -
year [2] - 21:14,
13:14 4:23, 8:7, 12:6, 12:8,
48:24
vote [1] - 36:14 12:25, 13:24, 14:14,
years [2] - 31:19,
14:21, 14:24, 15:9,
34:14
15:12, 15:16, 16:9,
York [2] - 46:12,

Case 2:04-cv-08425-VAP-E
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3
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5
6
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10
11 LOG CABIN REPUBLICANS, a ) Case No. CV 04-08425-VAP (Ex)
non-profit corporation, )
12 )
Plaintiff, ) FINDINGS OF FACT &
13 ) CONCLUSIONS OF LAW AFTER
v. ) COURT TRIAL [Fed. R. Civ. P. 52]
14 )
UNITED STATES OF AMERICA )
15 and ROBERT M. GATES, )
)
17 Defendants. )
_________________________ )
18 )
19
20 This case was tried to the Court on July 13 through 16 and July 20
21 through 23, 2010. After conclusion of the evidence and closing arguments on
22 July 23, 2010, both sides timely submitted supplemental post-trial briefing on
23 the admissiblility of a pretrial declaration submitted by Log Cabin Republicans
24 member John Doe,1 and the matter stood submitted.
25
26 1
The Court overruled Defendants' objections to Exhibit 38, the April 27,
2006. Declaration of John Doe, and considers the statements contained
27 therein regarding Doe's then-present state of mind for the limited purpose for
28 (continued...)
1
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1 Having considered all the evidence presented by the parties, as well as the
2 argument and briefing by counsel, the Court makes the following Findings of
3 Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.
4
5 FINDINGS OF FACT2
6 1. Plaintiff Log Cabin Republicans ("Log Cabin," "LCR," or "Plaintiff") is a
7 non-profit corporation founded in 1977 and organized under the laws of
8 the District of Columbia. (Trial Exs. 109 [Bylaws], 110 [Articles of
9 Incorporation].)
10 2. Plaintiff's mission includes "assist[ing] in the development and
11 enactment of policies affecting the gay and lesbian community . . . by
12 [the] federal government[]. . . and advocat[ing] and support[ing] . . .
13 activities or initiatives which (i) provide equal rights under law to
14 persons who are gay or lesbian, [and] (ii) promote nondiscrimination
15 against or harassment of persons who are gay or lesbian . . . ." (Trial
16 Ex. 109 [Mission Statement, attached as Ex. A to Bylaws].) The relief
17 sought here, i.e., the ability of homosexual servicemembers to serve
18 openly in the United States Armed Forces through repeal of the Don't
19 Ask, Don't Tell Act, relates to both aspects of Log Cabin's mission.
20 3. Plaintiff filed its Complaint on October 12, 2004. (Doc. No. 1.) It filed a
21 First Amended Complaint ("FAC") on April 28, 2006. (Doc. No. 25.)
22
23
24
1
25 (...continued)
which they were offered, i.e., Doe's state of mind with respect to whether the
26 Act chilled his speech and ability to petition the government for a redress of
grievances. See Fed. R. Evid. 803(3).
27 2
To the extent any of the Findings of Fact should more properly be
28 considered Conclusions of Law, they shall be deemed as such.
2
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1 4. Plaintiff seeks only declaratory and injunctive relief in its First Amended
2 Complaint; neither its claims nor the relief sought require individualized
3 proof on the part of its members.
4
5 John Doe’s Standing
6 5. John Doe serves as a lieutenant colonel in the United States Army
7 Reserve. He joined Log Cabin Republicans in early September 2004
8 by completing an application form (using a pseudonym) and paying
9 annual dues through Martin Meekins, then a member of Plaintiff's
10 national board of directors. Meekins accepted the application form and
11 dues payment from Doe and forwarded them to LCR's national
12 headquarters. (Trial Ex. 38.)
13 6. Doe arranged to pay his membership dues in this manner because he
14 feared he would be discharged from the Army Reserve pursuant to the
15 Don't Ask, Don't Tell Act if he joined the organization openly, using his
16 true name. Id.
17 7. Thus, at the time the Complaint was filed on October 12, 2004, John
18 Doe was a member in good standing of Plaintiff Log Cabin
19 Republicans.
20 8. To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual
21 orientation a secret from his coworkers, his unit, and his military
22 superiors, and he may not communicate the core of his emotions and
23 identity to others in the same manner as heterosexual members of the
24 military, on pain of discharge from the Army. (Doc. No. 212 ["July 6,
25 2010, Order"] at 16; Trial Ex. 38.)
26 9. Doe paid annual membership dues shortly before this action was filed
27 in October 2004, but LCR did not introduce evidence showing Doe paid
28
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1 dues, or otherwise made a financial contribution, to the organization

2 after 2004.
3 10. The evidence was conflicting regarding the effect of a member's
4 nonpayment of dues. James Ensley testified that when a member
5 failed to renew his or her annual dues payment, Log Cabin Republicans
6 viewed the member as a "former" or "inactive" member, but the name
7 would not be stricken from LCR's membership rolls or electronic
8 database simply because of tardiness in paying annual dues. (Trial Tr.
9 74:12-75, July 13, 2010.) Terry Hamilton, another member of the
10 national board of directors, testified that a member who failed to renew
11 his or her membership timely no longer would be considered a member,
12 but his testimony did not contradict Ensley's testimony regarding the
13 mailing list or membership rolls. (Trial Tr. 57:5-8, July 13, 2010.)
14 11. Despite the lack of evidence that Doe had paid annual membership
15 dues to LCR after 2004, he still served in the Army Reserve and still
16 was subject to discharge under the Don't Ask, Don't Tell Act. Thus, he
17 still had a personal stake in the outcome of the case, and his injury –
18 his susceptibility to discharge under the Act – continued to be
19 redressable by favorable resolution of the lawsuit.
20
21 John Nicholson’s Standing
22 12. John Alexander Nicholson, III, enlisted in the United States Army in
23 May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As detailed below, he
24 received an honorable discharge from the Army on March 22, 2002,
25 pursuant to the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3,
26 1185:22-1187:9, July 20, 2010.)
27
28
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1 13. In August 2005, Nicholson and others embarked on a nationwide

2 speaking tour sponsored by LCR to raise awareness of the movement
3 to repeal the Don't Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July
4 21, 2010.)
5 14. LCR's national and Georgia state chapter leaders asked Nicholson to
6 join the organization formally after he gave a speech at LCR's national
7 convention on April 28, 2006; he did not pay dues or make a cash
8 contribution at that time, but was told his membership was granted in
9 exchange for his services to the organization. (Trial Tr. 1207:22-
10 1208:25, 1211:25-1212:15, July 21, 2010.) Later he was told his was
11 an honorary membership. (Trial Tr. 1211:10-12, 1214:13-15, July 21,
12 2010.)
13 15. Nicholson testified credibly that he did not complete a paper
14 membership application form on April 28, 2006, because he gave the
15 necessary information to an LCR administrative assistant who entered it
16 directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.)
17 Plaintiff maintains an electronic database of its membership which lists
18 Nicholson as a member of Log Cabin Republicans as of April 28, 2006.
19 (Trial Tr. 1209:20-22, 1212:16-1213:16, July 21, 2010.) Nicholson
20 testified that he remembered the precise date Log Cabin's Georgia
21 chapter granted him honorary membership because it was the same
22 day he addressed LCR's national convention. (Trial Tr. 1208:11-15,
23 1210:11-1212:15, July 21, 2010.)
24 16. The testimony of James Ensley, President of LCR's Georgia chapter
25 since 2006 and a member of its national board of directors since 2008,
26 corroborated Nicholson's testimony regarding the date he became a
27 member of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) The Georgia
28
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1 chapter conferred honorary membership on Nicholson at the 2006 Log

2 Cabin Republicans national convention, in recognition of his
3 "remarkable" efforts on the nationwide speaking tour and on college
4 campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-
5 16, July 13, 2010.)
6 17. Ensley specifically recalled the date the Georgia chapter conferred
7 honorary membership on Nicholson because Ensley's congressman
8 had arranged a private tour of the White House for Ensley on the
9 morning of April 28, 2006, which was the same day Nicholson
10 addressed the convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The
11 Court found Ensley to be a candid and credible witness.
12 18. Terry Hamilton is a 25-year member of Log Cabin Republicans and now
13 serves as chairman of its national board of directors. (Trial Tr. 33:11-
14 35:22, July 13, 2010.) He verified that the organization's membership
15 records reflected Nicholson's membership status since April 28, 2006,
16 and also that Nicholson regularly attended and spoke at the
17 organization's annual conventions. (Trial Tr. 43:14-45:1, July 13, 2010.)
18 Based on these indicia, Hamilton understood Nicholson to be a member
19 of the organization since that date. (Trial Tr. 38:8-39:3, July 13, 2010.)
20 The Court found Hamilton a credible and reliable witness.
21 19. Thus, Nicholson officially joined Log Cabin Republicans on April 28,
22 2006, and has been a member continuously since then. (Trial Tr.
23 1208:11-15, 1214:24-1215:17, July 21, 2010.)
24 20. At the time Nicholson was conferred honorary membership, he satisfied
25 the requirements for membership under section 2.02 of the Log Cabin
26 Republican Bylaws, which states:
27 Honorary and Special Members: The Board of Directors may
establish other criteria for granting an Honorary Membership to Log
28
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1 Cabin Republicans for individuals who have exhibited a unique or

noteworthy contribution to the Mission of the Corporation or a
2 Special Membership to Log Cabin Republicans for individuals or
entities that have provided assistance to the Corporation.3
3 (Trial Ex. 109.)
21. Nicholson's membership in Log Cabin Republicans has been
4
uninterrupted and continuous since April 28, 2006, the date Plaintiff's
5
Georgia chapter conferred honorary membership upon him and also
6
the date Plaintiff filed its First Amended Complaint. In light of the
7
Court's May 27, 2010, Order, this is sufficient.
8
22. Martin Meekins testified credibly that the initiative for filing this lawsuit
9
came from the rank and file of the organization; Meekins then
10
interviewed members regarding the viability of a lawsuit and to
11
determine if the members met the requirements to confer standing on
12
the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19,
13
705:11-707:12, July 16, 2010.)
14
15
Testimony from Former Servicemembers
16
Michael Almy
17
23. Michael Almy served for thirteen years as a commissioned officer in the
18
United States Air Force, finishing his service as a major. (Trial Tr.
19
726:21-727:11, 728:11-12, July 16, 2010.) His family has a heritage of
20
21 3
Defendants argue Nicholson's honorary membership, pursuant to
22 section 2.02 of the Bylaws, did not confer membership on him because LCR's
Articles of Incorporation refer only to one class of membership. (See Doc.
23 No. 186 [Defs.' Mem. Cont. Fact & Law] at 3-4.) The Court rejected this
argument in its May 27, 2010, Order, noting "Defendants' argument that Mr.
24 Nicholson's honorary membership is insufficient to confer standing on Plaintiff
fails for two reasons . . . . Defendants have not shown that the bylaw cited
25 actually conflicts with Plaintiff's articles of incorporation . . . . [, and] [t]he
District of Columbia Nonprofit Corporation Act (the 'Corporation Act') provides
26 that a nonprofit corporation shall designate its membership class or classes
and accompanying qualifications 'in the articles of incorporation or the
27 bylaws.' D.C. Code § 29-301.12 (emphasis added)." (May 27, 2010, Order at
24-25.)
28
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1 military service; his father retired as a colonel in the Air Force, and two
2 uncles served as career military officers as well. (Trial Tr. 728:13-22,
3 July 16, 2010.)
4 24. Almy entered active duty in 1993, after obtaining an undergraduate
5 degree in Information Technology while serving in the Army ROTC
6 program. He did not self-identify as a gay man until a few years later.
7 (Trial Tr. 726:23-727:2, 819:3-12, July 16, 2010.) After that, he
8 testified, the Don't Ask, Don't Tell Act created a natural barrier between
9 himself and his colleagues, as he could not reveal or discuss his
10 personal life with others. (Trial Tr. 820:6-821:4, 821:19-822:9, July 16,
11 2010.) While it was common for the officers to socialize when off duty,
12 he could not join them. (Trial Tr. 821:19-822:9, July 16, 2010.) All of
13 this may have contributed to creating an aura of suspicion about him,
14 and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.)
15 25. The Court found Almy a forthright and credible witness whose modest
16 demeanor and matter-of-fact recitation of his service record did not
17 disguise his impressive career in the Air Force. Almy was deployed to
18 Saudi Arabia three times and helped enforce the southern "no fly" zone
19 over Iraq. Almy set up new communications bases throughout military
20 theaters in Jordan, Saudi Arabia, and Iraq, and was deployed in Saudi
21 Arabia, serving in the Communications Directorate, during the 2003
22 invasion of Iraq. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 2010.)
23 26. In 2003, after returning from his third deployment to Saudi Arabia, Almy
24 was promoted to the rank of major and accepted a position as the Chief
25 of Maintenance for the 606th Air Control Squadron in Spangdahlem,
26 Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy
27 commanded approximately 180 men in the Maintenance Directorate.
28
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1 (Trial Tr. 751:21-22, 753:7-11, July 16, 2010.) The three flights4 in the
2 Maintenance Directorate under his command in the 606th Air Control
3 Squadron deployed to Iraq in September 2004. His squadron was
4 responsible for maintaining and controlling the airspace during the
5 invasion of Fallujah, Iraq, and he was responsible for maintaining
6 control over the vast majority of Iraqi airspace, including Kirkuk, as well
7 as maintaining all satellite links and voice and data communications.
8 (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at Balad Air
9 Base, his flight experienced frequent mortar attacks "usually several
10 times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.)
11 27. After Almy completed his third deployment to Iraq in January 2005,
12 someone began using the same computer Almy had used while
13 deployed; that person searched Major Almy's private electronic mail
14 message ("e-mail") files without his knowledge or permission. The
15 search included a folder of Major Almy's personal e-mail messages,5
16 sent to his friends and family members, and read messages, including
17 at least one message to a man discussing homosexual conduct. (Trial
18 Tr. 764:23-766:6-767:2, July 16, 2010.)
19 28. Almy thought the privacy of his messages was protected; he was very
20 knowledgeable about the military's policy regarding the privacy of e-
21 mail accounts because of his responsibility for information systems.
22 (Trial Tr. 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He
23
4
24 A "flight" is the Air Force term for a group of airmen, comparable to a
"unit" in the Army. (Trial Tr. 1335:10-12, July 21, 2010.)
25 5
According to Major Almy's uncontradicted testimony on this point, the
26 Air Force, "for morale purposes," allows servicemembers deployed in combat
zones to use their government e-mail account for personal e-mail. (Trial Tr.
27 767:3-18, 794:6-15, 796:6-798:4, July 16, 2010.) Almy separated the
personal e-mail he received in his government e-mail account into a folder
28 titled "Friends." (Trial Tr. 769:20-770:15, July 16, 2010.)
9
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1 knew, for example, that according to Air Force policy, e-mail accounts
2 could not be searched unless authorized by proper legal authority or a
3 squadron commander or higher in the military chain of command. (Trial
4 Tr. 772:20-773:4, July 16, 2010.)
5 29. Almy only learned his private e-mail had been searched when he
6 returned to Germany and his commanding officer confronted Almy with
7 the messages, read him the Don't Ask, Don't Tell Act, and pressured
8 him to admit he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20,
9 July 16, 2010.) At the end of the meeting, Almy was relieved of his
10 duties, and his commanding officer informed the other officers in the
11 squadron of this. (Trial Tr. 774:7-15, July 16, 2010.)
12 30. Almy had attained one of the highest level security clearances available
13 for military personnel, "top secret SCI6 clearance;" approximately three
14 months after Almy was relieved of his duties, his security clearance was
15 suspended. (Trial Tr. 775:8-15, July 16, 2010.)
16 31. Initially, Almy contested his discharge, as he felt he had not violated the
17 terms of the Don't Ask, Don't Tell Act: he had never told anyone in the
18 military he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather,
19 Almy's understanding was that his discharge was based solely on the
20 e-mail discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16,
21 2010.)
22 32. Accordingly, Almy invoked his right to an administrative hearing and
23 solicited letters of support from those who had worked with him in the
24 Air Force. (Trial Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone
25 he asked to write such a letter agreed to do so. (Trial Tr. 777:17-25,
26 July 16, 2010.)
27
6
28 "SCI" stands for "Sensitive Compartmented Information."
10
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1 33. Colonel Paul Trahan, U.S. Army (Ret.), wrote: "My view is that Major
2 Almy has been, and will continue to be an excellent officer. As a former
3 Commander and Inspector General I am well aware of the specifics of
4 the Homosexual Conduct Policy. To my knowledge, Major Almy is not
5 in violation of any of the provisions of the policy. To the contrary, it
6 appears that in prosecuting the case against Major Almy, the USAF
7 may have violated the 'Don't Ask, Don't Tell Policy,' the Electronic
8 Privacy Act and Presidential directives regarding the suspension of
9 security clearances." (Trial Ex. 113 [Character Reference Letter from
10 Col. Paul Trahan, U.S. Army (Ret.)].)
11 34. Captain Timothy Higgins wrote: "Of the four maintenance directorate
12 chiefs I have worked with at the 606th, Major Almy is by far the finest.
13 During his tenure as the [director of logistics], he had maintenance
14 training at the highest levels seen to date . . . . His troops respected him
15 because they believed he had their best interests at heart." (Trial Ex.
16 117 [Character Reference Letter from Timothy J. Higgins, Capt.
17 USAF].)
18 35. Those who served under Almy wrote equally strong praise: "I can say
19 without reservation that Maj. Almy was the best supervisor I have ever
20 had." (Trial Ex. 120 [Character Reference Letter from Rahsul J.
21 Freeman, 1st Lt., USAF].) "I was deployed with him during the NATO
22 Exercise CLEAN HUNTER 2004. His leadership was key to our
23 successful completion of the mission. He was well liked and respected
24 by the enlisted personnel in the unit." (Trial Ex. 122 [Character
25 Reference Letter from Leslie D. McElya, SMSgt. USAF (Ret.)].)
26
27
28
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1 36. Almy's commanding officer while his discharge proceedings were

2 pending, Lt. Col. Jeffrey B. Kromer, wrote that he was convinced "the
3 Air Force, its personnel, mission and tradition remains unchanged and
4 unharmed despite [Almy's] alleged [violations of the Don't Ask, Don't
5 Tell Act]." (Trial Ex. 114.)
6 37. During the course of Almy's discharge proceedings, he was relieved of
7 his command, but remained at Spangdahlem Air Base performing "ad
8 hoc" duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy
9 testified he observed the effect his abrupt removal from his duties had
10 on his former unit: the maintenance, availability, and readiness of the
11 equipment to meet the mission declined. (Trial Tr. 813:19-24, 815:2-
12 18, July 16, 2010.)
13 38. One officer in the 606th Air Control Squadron observed that the
14 squadron "fell apart" after Major Almy was relieved of his duties,
15 illustrating "how important Maj. Almy was[,] not only to the mission but
16 to his troops." (Trial Ex. 121 [Character Reference Letter from Bryan
17 M. Zollinger, 1st Lt. USAF, 606th Air Control Squadron].)
18 39. After sixteen months, Almy agreed to drop his request for an
19 administrative hearing and to accept an honorable discharge. He
20 testified he did so because of his own exhausted emotional state and
21 the risk that a less-than-honorable discharge would affect his ability to
22 obtain a civilian job or receive his retirement benefits. (Trial Tr. 798:8-
23 799:13, July 16, 2010.) Almy refused to sign his official discharge
24 papers, however, because they listed the reason for discharge as
25 admitted homosexuality. (See Trial Ex. 112; Trial Tr. 800:1-801:20,
26 July 16, 2010.)
27
28
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1 40. Major Almy received many awards and honors during his service in the
2 Air Force. For example, while serving at Tinker Air Force Base in the
3 late 1990s with the Third Combat Communications Group, he was
4 selected as "Officer of the Year," chosen as the top performer among
5 his peers for "exemplary leadership, dedication to the mission, and
6 going above and beyond the call of duty." (Trial Tr. 741:1-11, July 16,
7 2010.) In 2001, he was one of six Air Force officers chosen to attend
8 the residential training program for officers at the Marine Corps
9 Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005, he was
10 awarded the Lt. General Leo Marquez Award, given to the top Air Force
11 communications officer serving in Europe. (Trial Tr. 760:8-761:1, July
12 16, 2010.) Although Almy had been relieved of command during the
13 pendency of the discharge proceedings, Almy's wing commander,
14 Colonel Goldfein, recommended that Almy be promoted to lieutenant
15 colonel. (Trial Tr. 816:19-818:1, July 16, 2010.)
16 41. Almy testified that if the Act were no longer in effect, he "wouldn't
17 hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.)
18
19 Joseph Rocha
20 42. Joseph Rocha enlisted in the United States Navy on April 27, 2004, his
21 eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family,
22 like Major Almy's, had a tradition of military service, and the September
23 11, 2001, attacks also motivated him to enlist. (Trial Tr. 474:5-24, July
24 15, 2010.) He wanted to be an officer in the United States Marine
25 Corps, but was not admitted to the Naval Academy directly out of high
26 school; so he hoped to enter Officer Training School through diligence
27 as an enlisted man. (Trial Tr. 473:24-474:24, July 15, 2010.)
28
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1 43. After successfully completing basic training, Rocha was promoted to

2 seaman apprentice and received further training in counter-terrorism
3 and force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then
4 volunteered for deployment on a military mission to Bahrain. (Trial Tr.
5 476:6-12, July 15, 2010.)
6 44. Once he arrived at the Naval Support base in Bahrain, Rocha sought
7 out the base's canine handler position because he wanted to specialize
8 in becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15,
9 2010.)
10 45. The canine group is an elite and competitive unit, for which qualification
11 is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha volunteered
12 his off-duty time to earn the qualifications to interview and be tested for
13 a kennel-support assignment; during this time, his interactions with
14 members of the canine unit were limited to one or two handlers on the
15 night shift when he volunteered. (Trial Tr. 478:20-479:13, July 15,
16 2010.)
17 46. Eventually, Rocha took and passed oral and written examinations with
18 Chief Petty Officer Toussaint, the canine group's commanding officer;
19 Rocha met the other qualifications and received an assignment in
20 kennel support. (Trial Tr. 480:11-19, 481:4-9, July 15, 2010.) His
21 duties were to ensure the dogs – that were trained to sniff and detect
22 explosives and explosive devices – were clean, fed, medicated, and
23 exercised. (Trial Tr. 481:10-17, July 15, 2010.)
24 47. At the same time, Rocha voluntarily participated in additional physical
25 training exercises with members of the Marine Corps, such as martial
26 arts and combat operations training, in the belief this eventually would
27
28
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1 improve his chances for admission to the Naval Academy. (Trial Tr.
2 482:16-483:6, July 15, 2010.)
3 48. As Rocha aspired to become a Marine officer, after receiving
4 permission through the Marine chain of command, he began "more
5 formal training," eventually earning martial arts, combat, and swimming
6 qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)
7 49. Once assigned as kennel support to the canine unit and under Chief
8 Petty Officer Toussaint's command, Rocha was hazed and harassed
9 constantly, to an unconscionable degree and in shocking fashion.
10 When the eighteen-year-old Rocha declined to participate in the unit's
11 practice of visiting prostitutes, he was taunted, asked if he was a
12 "faggot," and told he needed to prove his heterosexuality by consorting
13 with prostitutes. (Trial Tr. 486:18-487:2, 488:3-7, July 15, 2010.)
14 Toussaint freely referred to him as "gay" to the others in the unit, who
15 then began to use derogatory language towards Rocha. (Trial Tr.
16 486:11-17, July 15, 2010.)
17 50. When Rocha refused to answer questions about his sexual orientation
18 from Toussaint and others in the unit, "it became a frenzy," in Rocha's
19 words, and his superiors in the canine unit would gather around him,
20 simulate sexual positions, and ask if U.S. Marine Corps soldiers
21 performed various sexual acts on him. (Trial Tr. 487:20-488:7, 488:8-
22 19, July 15, 2010.) Toussaint ordered all of the other men in the unit to
23 beat Rocha on the his nineteenth birthday. (Trial Tr. 485:16-486:3, July
24 15, 2010.)
25 51. On one occasion that Rocha testified was especially dehumanizing,
26 Toussaint brought a dozen dogs to the Department of Defense
27 Dependents School for a bomb threat training exercise. For the
28
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1 "training exercise" he instructed Rocha to simulate performing oral sex

2 on another enlisted man, Martinez, while Toussaint called out
3 commands about how Rocha should make the scenario appear more
4 "queer." (Trial Tr. 490:13-492:19, July 15, 2010.)
5 52. On another occasion, Toussaint had Rocha leashed like a dog,
6 paraded around the grounds in front of other soldiers, tied to a chair,
7 force-fed dog food, and left in a dog kennel covered with feces. (Trial
8 Tr. 521:11-522:1, July 15, 2010.)
9 53. Rocha testified that during this deployment in Bahrain, he never told
10 anyone he was gay because he wanted to comply with the Don't Ask,
11 Don't Tell Act. (Trial Tr. 487:20-488:2, July 15, 2010.) He did not
12 report any of the mistreatment he suffered, although he believed it
13 violated Navy regulations. (Trial Tr. 488:20-489:14, July 15, 2010.)
14 Toussaint was his commanding officer to whom he normally would
15 direct such a report yet was either responsible for the mistreatment or
16 present when others engaged in it. (Id.)
17 54. Rocha's only other choice was to report the misconduct to the Inspector
18 General, which he did not believe was feasible. (Trial Tr. 499:6-16,
19 533:2-19, July 15, 2010.) He was eighteen to nineteen years old at the
20 time, far from home, and all of the perpetrators were senior to him in
21 rank and led in the misconduct by his commanding officer. (Trial Tr.
22 488:20-489:14, July 15, 2010.)
23 55. Eventually Rocha received the assignment he had hoped for, returning
24 to the United States and reporting to Lackland Air Force Base for
25 Military Working Dog Training School. (Trial Tr. 499:20-500:1, July 15,
26 2010.)
27
28
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1 56. Once he completed the training at Lackland successfully, he returned to

2 Bahrain, where he found that although he was now a military dog
3 handler himself, the same atmosphere prevailed. (Trial Tr. 500:2-6, 16-
4 18, July 15, 2010.)
5 57. A new petty officer had joined the unit, Petty Officer Wilburn, who
6 declared openly that Rocha was "everything he hated: liberal, [Roman]
7 Catholic, and gay." (Trial Tr. 501:19-502:11, July 15, 2010.) Wilburn
8 trailed Rocha regularly as Rocha tried to carry out his duties, taunting
9 and harassing him. Rocha wrote Wilburn a letter complaining about his
10 conduct; in response, Wilburn left an image of two men engaging in
11 homosexual activity on Rocha's computer with the message that if
12 Rocha complained, "no one will care." (Trial Tr. 502:12-504:5, July 15,
13 2010.)
14 58. When the Navy undertook an investigation of Toussaint's command
15 (apparently unmotivated by anything Rocha said or did), Rocha was
16 questioned by a captain but at first refused to answer any questions
17 about the mistreatment he was subjected to because he was afraid the
18 investigation might lead to questions about his sexual orientation and
19 an investigation on that subject. (Trial Tr. 519:16-520:10, July 15,
20 2010.)
21 59. So great was Rocha's fear of retaliation that he responded to an
22 investigating officer's questions regarding Toussaint only after he was
23 threatened with a court martial if he continued to refuse to respond.
24 (Trial Tr. 520:11-15, July 15, 2010.)
25 60. The Navy recognized Rocha with several awards during his service,
26 including the Navy and Marine Corps Achievement Medal for
27 professional achievement that exceeds expectations; the Global War
28
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1 on Terrorism Expeditionary Medal; the National Defense Service

2 Medal; and the Navy Expert Rifleman Medal. (Trial Tr. 517:23-24,
3 518:7-8, 14-16, 519:4-7, July 15, 2010.)
4 61. Rocha received consistently excellent performance evaluations and
5 reviews while he served in the Navy. (See Trial Exs. 144, 145.) In
6 Rocha's review covering February 18, 2005, through July 15, 2005, his
7 supervisors – including Toussaint – described Rocha as "highly
8 motivated" and a "dedicated, extremely reliable performer who
9 approaches every task with enthusiasm." (Trial Ex. 145; Trial Tr.
10 494:23-497:13, July 15, 2010.) Rocha's review also stated that he was
11 a "proven performer" who was "highly recommended for advancement."
12 (Trial Tr. 496:16-497:3, July 15, 2010.) Rocha's review recommended
13 him for early promotion, which he received shortly thereafter. (Trial Tr.
14 497:7-22, July 15, 2010.) Toussaint signed the review as Rocha's
15 senior reviewing military officer. (Trial Tr. 495:19-23, 498:4-6, July 15,
16 2010.)
17 62. Despite the ongoing harassment, Rocha continued to receive
18 exemplary reviews from his supervisors in the canine handling unit,
19 including Toussaint. In a review covering July 16, 2005, through June
20 16, 2006, then-Petty Officer Rocha is described as an "exceptionally
21 outstanding young sailor whose performance, initiative, and
22 immeasurable energy make[ ] him a model Master-At-Arms." (Trial Ex.
23 144; Trial Tr. 504:23-506,19, July 15, 2010.) The review also noted
24 that as a military working dog handler, Rocha "flawlessly inspected
25 [over 300 items of military equipment,] increasing the force protection of
26 NSA Bahrain." (Trial Ex. 144; Trial Tr. 506:10-13, July 15, 2010.)
27
28
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1 63. As a result of his performance as a military working dog handler, Rocha

2 received the Navy and Marine Corps Achievement Medal, which is
3 given when an enlisted member exceeds expectations. (Trial Tr.
4 517:15-518:6 July 15, 2010.)
5 64. In 2006, Rocha was chosen to receive the sole nomination from his
6 congressman for entrance into the U.S. Naval Academy, and Rocha
7 chose to apply to the Naval Academy's preparatory school in the event
8 he was not accepted directly into the Naval Academy.7 (Trial Tr. 506:1-
9 4; 507:4-23, July 15, 2010.)
10 65. Rocha received the required nomination of everyone in his chain of
11 command for his entry into the Naval Academy and was accepted into
12 its preparatory school. (Trial Tr. 508:13-509:6, July 15, 2010.) Hearing
13 of acceptance to the Academy was "the most significant moment of
14 [his] life . . . , [because acceptance into the Naval Academy] was the
15 biggest dream [he'd] ever had." (Trial Tr. 519:8-15, July 15, 2010.)
16 66. Once he enrolled at the preparatory academy, Rocha had the
17 opportunity to reflect on his experiences in Bahrain. (Trial Tr. 522:12-
18 24, July 15, 2010.) His instructors at the preparatory scbool stressed
19 the nature of the fifteen- to twenty-year commitment expected of the
20 officer candidates. (Id.) Rocha understood he was gay when he
21 enlisted in the Navy at age eighteen, and had complied fully with the
22 Don't Ask, Don't Tell Act during his service, which he had thought would
23 protect him. (Id.)
24
25
7
26 According to Rocha's uncontradicted testimony on this point, the
preparatory school is designed to give extra academic support before entry
27 into the Naval Academy at Annapolis. (Trial Tr. 507:24-508:4, July 15, 2010.)
Once admitted into the Naval Academy's preparatory school, acceptance into
28 Annapolis is guaranteed. (Trial Tr. 508:5-12, July 15, 2010.)
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1 67. After reflecting on his experiences in the military working dog unit in
2 Bahrain, however, he decided it would be impossible for him to serve
3 under the restraints of the Act and fulfill the commitment expected of
4 him. He then decided to inform the Navy of his sexual orientation.
5 (Trial Tr. 522:12-523:15, July 15, 2010.)
6 68. He first sought permission from his immediate supervisor, Ensign
7 Reingelstein, to speak to the division commander; Ensign Reingelstein
8 unsuccessfully tried to persuade Rocha to change his mind. (Trial Tr.
9 523:14-524:14, July 15, 2010.) Rocha then was allowed to meet with
10 his commanding officer, Lt. Bonnieuto, who listened and told him to
11 return to his unit. (Trial Tr. 525:2-19, July 15, 2010.)
12 69. Eventually, he received an honorable discharge (see Trial Ex. 144),
13 although before accepting Rocha's statement, Lt. Bonnieuto tried to
14 dissuade him, telling him he was being considered for various honors
15 and leadership positions at the preparatory school, including "battalion
16 leadership." (Trial Tr. 525:21-526:6, 527:13-528:22, 530:4-25, July 15,
17 2010.)
18 70. After his discharge, Rocha was diagnosed with service-related
19 disorders including "post-traumatic stress disorder with major
20 depression." (Trial Tr. 532:11-19, July 15, 2010.)
21 71. Rocha testified he would rejoin the Navy if the Don't Ask, Don't Tell Act
22 was repealed. (Trial Tr. 533:24-534:2, July 15, 2010.)
23 72. Even when recounting the mistreatment endured under Toussaint's
24 command, Rocha testified in an understated and sincere manner. The
25 Court found him a forthright and credible witness.
26
27
28
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1 Jenny Kopfstein
2 73. Jenny Kopfstein joined the United States Navy in 1995 when she
3 entered the United States Naval Academy; after graduation and further
4 training, she began serving on the combatant ship USS Shiloh on
5 March 15, 2000. (Trial Tr. 919:12-14, 926:11-927:3, 927:12-19, July
6 16, 2010.)
7 74. Kopfstein was assigned as the ship's ordnance officer, which means
8 she "was in charge of two weapon systems and a division of [fifteen]
9 sailors." (Trial Tr. 928:22-929:6, July 16, 2010.) When assigned as
10 "officer of the deck," Kopfstein was "in charge of whatever the ship
11 happened to be doing at that time," and coordinating the ship's training
12 exercises of as many as twenty to thirty sailors. (Trial Tr. 929:7-930:4,
13 July 16, 2010.)
14 75. Once assigned to the USS Shiloh, Kopfstein discovered the Act made it
15 impossible for her to answer candidly her shipmates' everyday
16 questions about such matters as how she spent weekends or leave
17 time; to do so would place her in violation of the Act as she would
18 necessarily be revealing the existence of her lesbian partner. (Trial Tr.
19 931:22-932:11, July 16, 2010.) Having to conceal information that
20 typically was shared made her feel as though other officers might
21 distrust her, and that trust is critical, especially in emergencies or
22 crises. (Trial Tr. 957:6-22, July 20, 2010.)
23 76. The Don't Ask, Don't Tell Act's prohibition on gay and lesbian
24 servicemembers revealing their sexual orientation affects trust among
25 shipmates, as Kopfstein testified, because it causes people to "hide
26 significant parts of themselves," making it harder to establish the
27 necessary sense of teamwork. (Trial Tr. 978:16-979:18 July 20, 2010.)
28
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1 When she overheard homophobic comments and name-calling by her

2 shipmates, she felt she could neither report them nor confront the
3 offenders, because to do either might call unwanted suspicion upon
4 her. (Trial Tr. 932:18-933:6, July 16, 2010.)
5 77. After serving for four months on the USS Shiloh, Kopfstein wrote a
6 letter to Captain Liggett, her commanding officer, stating she was a
7 lesbian; she wanted Captain Liggett to learn this from her rather than
8 hear it from another source. (Trial Tr. 933:7-13, 935:8-23, July 16,
9 2010; Trial Ex. 140 ["Memorandum of Record" from Kopfstein to
10 Liggett, July 17, 2000].)
11 78. Captain Liggett did not begin any discharge proceedings after Kopfstein
12 wrote this letter; he told her this was because he did not know her well
13 and thought she might have written the letter not because she was a
14 lesbian, but rather as an attempt to avoid deployment to the Arabian
15 Gulf. (Trial Tr. 935:20-937:11, July 16, 2010; 985:5-14, July 20, 2010.)
16 79. Kopfstein continued to serve and perform her duties in the same
17 manner she had before writing, but no longer lying or evading her
18 shipmates' questions about her personal life when asked. (Trial Tr.
19 950:25-951:11, July 20, 2010.)
20 80. When leaving the USS Shiloh, to be replaced by Captain Dewes,
21 Captain Liggett not only invited Kopfstein to the farewell party at his
22 house for the officers and their spouses, but made a point of telling her
23 she was welcome to bring "any guest she chose" with her. (Trial Tr.
24 955:12-956:8, July 20, 2010.) Kopfstein and her partner attended the
25 party, and Kopfstein testified that Captain Liggett and his wife
26 welcomed them both warmly, as did everyone else present. (Trial Tr.
27 956:12-25, July 20, 2010.)
28
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1 81. During the abbreviated course of her service, the Navy awarded
2 Kopfstein many honors. For example, she was chosen to steer the
3 USS Shiloh in a ship steering competition; after the USS Shiloh won the
4 competition, she received a personal commendation from the Admiral
5 who also ceremonially "gave her his coin," a rare and prized tribute.
6 (Trial Tr. 952:14-953:20, July 20, 2010.) When she returned from
7 overseas deployment after the bombing of the USS Cole off the coast
8 of Yemen in February 2001, the Navy awarded her the Sea Service
9 Deployment Ribbon, another commendation not routinely awarded.
10 (Trial Tr. 949:11-22, 954:5-22, July 20, 2010.) She also was awarded
11 the Naval Expeditionary Medal after the Yemen deployment. (Trial Tr.
12 955:5-11.)
13 82. On September 11, 2001, Kopfstein was the ordnance officer on the
14 USS Shiloh, in charge of all the weapons on the ship; the captain chose
15 her to be officer of the deck as the ship was assigned to defend the
16 West Coast against possible attack in the wake of the attacks on New
17 York and the Pentagon. (Trial Tr. 958:17-962:19, 963:22-25, July 20,
18 2010.) In October 2001, the Navy awarded her the Surface Warfare
19 Officer pin, during a ceremony where her captain took off his pin and
20 pinned it on her chest. (Trial Tr. 968:8-970:1, July 20, 2010.)
21 83. In evaluations completed before and after Kopfstein revealed her
22 sexual orientation, her commanding officers praised her as the USS
23 Shiloh's "best [o]fficer of [the d]eck," a "[t]op [n]otch performer," "a gifted
24 ship handler," and the manager of "one of the best ship's led and
25 organized divisions," and a "[s]uperb [t]rainer" with a "great talent for
26 teaching other junior officers." (Trial Exs. 138, 139.)
27
28
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1 84. Two captains under whom she served came to the Board of Inquiry to
2 testify on her behalf during her discharge proceedings. (Trial Tr. 974:2-
3 977:11, July 20, 2010.) Captain W.E. Dewes, Kopfstein's commanding
4 officer at the time of her discharge, reported that "[h]er sexual
5 orientation has not disrupted good order and discipline onboard USS
6 SHILOH;" rather, Kopfstein was "an asset to the ship and the Navy"
7 and "played an important role in enhancing the ship[']s strong
8 reputation . . . . She is a trusted [o]fficer of the [d]eck and best ship
9 handler among her peers. Possesses an instinctive sense of relative
10 motion – a natural Seaman." (Trial Ex. 139.)
11 85. Captain Liggett also attended her discharge proceedings, where he
12 testified that "it would be a shame for the service to lose her." (Trial Ex.
13 138.)
14 86. Kopfstein served in the Navy without concealing her sexual orientation
15 for two years and four months before her discharge. During that time,
16 to her knowledge, no one complained about the quality of her work or
17 about being assigned to serve with her. (Trial Tr. 984:8-12, 987:6-8,
18 989:9-17, July 20, 2010.)
19 87. Kopfstein did not want to leave the Navy; she enjoyed the company of
20 her shipmates and found her work rewarding. (Trial Tr. 973:16-24, July
21 20, 2010.)
22 88. Nevertheless, Kopfstein was discharged under the Don't Ask, Don't Tell
23 Act. (Id.) Although she appealed the decision to separate her from the
24 Navy, she did not prevail, and on October 31, 2002, she received an
25 honorable discharge. (Trial Tr. 977:9-20, July 20, 2010.)
26 89. Kopfstein testified she "absolutely" would rejoin the Navy if the Act were
27 repealed. (Trial Tr. 980:16-22, July 20, 2010.)
28
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1 90. The Court found Kopfstein an honest, candid, and believable witness;
2 she testified with modest understatement about her talent and
3 achievements as a naval officer and with obvious sincerity about her
4 desire to rejoin to fulfill her original commitment.
5
6 John Nicholson
7 91. John Nicholson enlisted in the United States Army in May 2001. (Trial
8 Tr. 1135:6-12, July 20, 2010.) At the time he enlisted, he was fluent in
9 Spanish and "fairly proficient" in Italian and Portuguese. (Trial Tr.
10 1129:3-1130:23, 1134:10-23, 1135:13-18, July 20, 2010.) He
11 underwent testing in the military for foreign language aptitude and
12 qualified for the most difficult level of language training, Category 4.
13 (Trial Tr. 1151:25-1152:3, 1154:4-9, July 20, 2010.)
14 92. While Nicholson served, especially while in basic training at Fort
15 Benning, Georgia, he sometimes heard other soldiers make sexist or
16 homophobic slurs but was afraid to report these violations of military
17 conduct lest suspicion fall on him or he be retaliated against in a
18 manner that would lead to his discharge under the Act. (Trial Tr.
19 1138:1-1142:14, 1143:2-24, July 20, 2010.)
20 93. The Don't Ask, Don't Tell Act prevented Nicholson from being open and
21 candid with others in his unit; it kept him under a "cloud of fear," and
22 caused him to lie about and alter who he was. (Trial Tr. 1194:17-
23 1196:20, July 20, 2010.)
24 94. After completing his basic training, Nicholson was assigned to Fort
25 Huachuca, Arizona, to train as a human intelligence collector. (Trial Tr.
26 1143:25-1144:3, July 20, 2010.) While completing his intelligence
27 training at Fort Huachuca, Nicholson requested and received a
28
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1 reassignment to counterintelligence, but remained at Fort Huachuca to

2 complete the requisite counterintelligence training. (Trial Tr. 1148:5-14,
3 July 20, 2010.)
4 95. Nicholson was waiting to start the next cycle of the counterintelligence
5 course when another servicemember started spreading a rumor that
6 Nicholson was gay. (Trial Tr. 1154:12-18, July 20, 2010.)
7 96. The rumor originated because, while off duty in January 2002,
8 Nicholson wrote a letter to a man with whom he had a relationship
9 before joining the Army. Nicholson wrote the letter in Portuguese to
10 prevent other servicemembers from reading it, because it contained
11 references that could reveal Nicholson's sexual orientation. (Trial Tr.
12 1134:10-23, 1161:10-1163:7, July 20, 2010.)
13 97. Despite Nicholson's precautions, another servicemember caught sight
14 of the letter while chatting with Nicholson. (Id.) After the two had been
15 talking for a few minutes, Nicholson realized she was one of the few
16 persons he knew in the Army who also could also read Portuguese; he
17 gathered up the pages of his letter after he noticed she appeared to be
18 interested in it and reading it. (Id.; Trial Tr. 1163:8-18, July 20, 2010.)
19 98. After this incident, members of Nicholson's unit approached him and
20 told him to "be more careful" with regard to disclosing his sexual
21 orientation. (Trial Tr. 1164:3-1165:10, July 20, 2010.) Nicholson
22 sought his platoon sergeant's assistance to stop the spread of the
23 rumor, but the sergeant instead informed the chain of command. (Trial
24 Tr.1166:9-1167:19, 1170:9-15, July 20, 2010.)
25 99. Nicholson's company commander summoned Nicholson to his office
26 and informed Nicholson that he was initiating discharge proceedings.
27 (Trial Tr. 1180:21-1182:9, July 20, 2010.) Upon leaving the meeting,
28
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1 the platoon sergeant, who also had been present at the meeting,
2 ordered Nicholson not to disclose why he was being discharged from
3 the Army. (Trial Tr. 1182:11-1183:15, July 20, 2010.)
4 100. After meeting with his company commander, Nicholson was separated
5 from his platoon and placed in a wing of the barracks containing other
6 servicemembers who were being discharged for reasons such as drug
7 use and failing to disclose criminal convictions before enlistment. (Trial
8 Tr. 1184:11-1185:11, July 20, 2010.)
9 101. Two months later, Nicholson was honorably discharged under the Don't
10 Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:10, 1187:10-13, July 20,
11 2010.)
12 102. Nicholson testified he "absolutely" would return to the Army if the Don't
13 Ask, Don't Tell Act were invalidated. (Trial Tr. 1209:4-5, July 21, 2010.)
14 103. As noted above with respect to his testimony on the standing issue, the
15 Court observed Nicholson to be credible and forthright.
16
17 Anthony Loverde
18 104. Anthony Loverde joined the United States Air Force on February 13,
19 2001, making a six-year commitment and hoping to use his G.I. Bill
20 benefits to obtain a post-graduate degree eventually. (Trial Tr.
21 1326:19-24, 1327:16-1328:22, July 21, 2010.)
22 105. After completing basic training, he received specialized training in
23 electronics and further training in calibrations, after which he qualified at
24 the journeyman level as a Precision Measurement Equipment
25 Laboratory ("PMEL") technician. (Trial Tr. 1329:5-24, July 21, 2010.) A
26 PMEL technician calibrates the accuracy, reliability, and traceability of
27
28
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1 all types of equipment, including precision warfare equipment. (Trial Tr.

2 1335:13-1336:5, July 21, 2010.)
3 106. After completing training in December 2001, Loverde was stationed at
4 Ramstein Air Base in Germany. (Trial Tr. 1334:18-21, July 21, 2010.)
5 While at Ramstein, Loverde's flight was responsible for calibrating and
6 ensuring the accuracy and reliability of "various equipment used
7 throughout the Air Force." (Trial Tr. 1335:13-1336:20, July 21, 2010.)
8 Loverde was stationed at Ramstein for approximately three years.
9 (Trial Tr. 1337:5-11, July 21, 2010.)
10 107. After completing his tour at Ramstein Air Base, Loverde was stationed
11 at Edwards Air Force Base in California for approximately two years.
12 (Trial Tr. 1341:17-1342:2, July 21, 2010.) While stationed at Edwards,
13 Loverde was deployed to Al Udeid Air Base in Qatar for four months,
14 where he supported Operations Iraqi Freedom and Enduring Freedom,
15 as well as missions in the Horn of Africa. (Trial Tr. 1344:8-22,
16 1345:17-21, July 21, 2010.)
17 108. During his stint in the Air Force, Loverde received frequent promotions.
18 Three and one-half years after enlistment, for example, he was
19 promoted to staff sergeant, although the usual length of time to reach
20 that rank is six years. (Trial Tr. 1337:12-1338:5, 1338:21-1339:12, July
21 21, 2010.)
22 109. After serving his initial enlistment commitment, he reenlisted and
23 received further training to qualify as a loadmaster. (Trial Tr. 1352:25-
24 1353:15, July 21, 2010.) In that capacity, he flew sixty-one combat
25 missions in Iraq, where he received two Air Medals. (Trial Tr. 1357:12-
26 17, 1359:17-25, July 21, 2010.)
27
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1 110. Loverde testified he was raised in a religious family and his church
2 taught that homosexuality was a sin; he had not realized he was gay at
3 the time he joined the military at age twenty-one. (Trial Tr. 1327:16-17,
4 1330:13-25, July 21, 2010.) After he became aware of his sexual
5 orientation, he researched the Don't Ask, Don't Tell Act and found the
6 Servicemembers' Legal Defense Network website. (Trial Tr. 1332:13-
7 1333:4, July 21, 2010.) He understood that there were three grounds
8 for discharge under the Act – marriage, conduct, and statements. (Trial
9 Tr. 1332:17-1333:4, July 21, 2010.) He resolved to comply with the Act
10 and remain in the Air Force.
11 111. The Air Force's core values are "Integrity First, Service Before Self, and
12 Excellence in All We Do." (Trial Tr. 1333:5-24, July 21, 2010; 367:20-
13 25, July 14, 2010.) Loverde testified that the Don't Ask, Don't Tell Act
14 effectively made it impossible to honor the "Integrity First" value of the
15 credo, because on occasion, he felt forced to lie rather than violate the
16 Act. Once, when with other servicemembers in a bar off base in
17 Germany, he refused the sexual advances of a German civilian woman,
18 and his colleagues asked him if he was gay; on another occasion, a
19 subordinate airman asked Loverde about his sexual orientation. (Trial
20 Tr. 1333:5-1334:16, 1349:24-1350:24, July 21, 2010.)
21 112. During the time he served as a loadmaster at Ramstein Air Base in
22 Germany, Loverde’s flight chief often used offensive epithets to refer to
23 homosexuals, as well as racist and sexist slurs. (Trial Tr. 1364:16-
24 1365:25, July 21, 2010.) Although Loverde was disturbed by this, he
25 felt he had no recourse and could not report it lest he draw attention to
26 his sexual orientation. Therefore, during the year he served under this
27
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1 officer, he never made any formal or informal complaint about it. (Id.;
2 Trial Tr. 1366:13-15, July 21, 2010.)
3 113. Loverde also testified that during his combat deployments and during
4 his assignments to bases in Germany and California, he faced the
5 difficulty of having to hide his personal life from his colleagues and
6 avoiding conversations with them about everyday life over meals, for
7 example. (Trial Tr. 1360:1-1361:17, July 21, 2010.) He became so
8 skilled at avoiding his fellow airmen that they nicknamed him "Vapor" in
9 recognition of his ability to vanish when off duty. (Id.)
10 114. In April 2008, Loverde decided he was no longer willing to conceal his
11 sexual orientation. (Trial Tr. 1366:16-20, July 21, 2010.) At that time,
12 he was deployed at Ali Al Saleem Air Base in Kuwait, and he delayed
13 formally telling his commanding officer of his decision until his return to
14 Germany, lest his entire flight's mission be disrupted and their return
15 from deployment delayed. (Trial Tr. 1355:18-21, 1366:16-1367:25, July
16 21, 2010.)
17 115. When Loverde returned to Germany from his deployment, he wrote to
18 his first sergeant, requesting to speak to his commanding officer about
19 continuing to serve under the Don't Ask, Don't Tell Act, and stating that
20 while he wanted to continue serving in the Air Force, he could not do so
21 under that law. (Id.; Trial Tr. 1368:20-1369:3, July 21, 2010.)
22 116. Loverde's superiors recommended the Air Force retain him and
23 commended him for being "nothing less than an outstanding [non-
24 commissioned officer]" and "a strong asset" to the Air Force. (Trial Exs.
25 136, 137.) They praised him for demonstrating an "exceptional work
26 ethic" and "the highest level of military bearing, honest, and
27 trustworthiness." (Id.) One wrote: "If I ever had the opportunity to build
28
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1 my 'dream team' for work, I would take an entire crew of SSgt. Loverde
2 over most other workers. . . ." (Trial Ex. 137.)
3 117. Nevertheless, in July 2008 the Air Force gave Loverde an honorable
4 discharge, citing the Don't Ask, Don't Tell Act. (See Trial Exs. 129, 134,
5 136, 137; Trial Tr. 1372:20-1377:20, July 21, 2010.)
6 118. Loverde testified he would join the Air Force again "without a doubt" if
7 the Don't Ask, Don't Tell Act were repealed. (Trial Tr. 1389:12-18, July
8 21, 2010.) The Court found Loverde a candid and credible witness.
9
10 Steven Vossler
11 119. Steven Vossler's family has a tradition of service in the Army extending
12 back to the Spanish-American War, and he enlisted in the United
13 States Army in November 2000, before graduating high school. (Trial
14 Tr. 302:19-303:5, July 14, 2010.) After basic training, the Army sent
15 him to the Defense Language Institute in Monterey, California, because
16 of his exceptional aptitude for foreign languages. (Trial Tr. 305:5-306:6,
17 July 14, 2010.)
18 120. Vossler developed close friendships with other students at the
19 Language Institute, and testified that in general it is important to have
20 "good, open relationships" and to discuss one's personal experiences
21 and life with one's colleagues in the military, and if one does not, it is
22 perceived as an attempt to distance one's self. (Trial Tr. 316:7-317:17,
23 July 14, 2010.)
24 121. Vossler met Jerrod Chaplowski, another soldier and Korean language
25 student at the Monterey Language Institute, and became friends with
26 him. (Trial Tr. 317:14-20, 318:16-17, July 14, 2010.) Eventually
27 Vossler heard a rumor that Chaplowski was gay. (Trial Tr. 318:22-
28
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1 320:24, July 14, 2010.) Vossler was initially surprised at this, because
2 "up until that point, [he] still held some very stereotyping beliefs about
3 gays and lesbians," but as a heterosexual, he had no difficulty sharing
4 living quarters with Chaplowski at any of the several Army bases where
5 they were quartered together; in fact, Chaplowski was a considerate
6 roommate and it was always a "great living situation." (Trial Tr. 319:16-
7 17, 321:2-10, 327:1-11, 329:20-25, July 14, 2010.)
8 122. The difficulty Vossler encountered was that when he and Chaplowski
9 were with other servicemembers and the conversation turned to
10 general subjects, Vossler had to be excessively cautious lest he
11 inadvertently cast suspicion on Chaplowski and trigger an investigation
12 under the Don't Ask, Don't Tell Act. (See Trial Tr. 327:12-328:20, July
13 14, 2010.) For example, if a group of soldiers was discussing their
14 respective social activities over the previous weekend, Vossler had to
15 refer to Chaplowski's dinner companion as "Stephanie" rather than
16 "Steven;" even this small deception pained Vossler as it violated the
17 Army's code of honor. (Id.)
18 123. Vossler also observed that the Don't Ask, Don't Tell Act infringed
19 Chaplowski's ability or willingness to enforce the Army's policy banning
20 offensive and discriminatory language. (Trial Tr. 328:22-329:4, July 14,
21 2010.) Homophobic slurs, epithets, and "humor" were commonplace
22 and made Vossler uncomfortable; he noticed that Chaplowski did not
23 confront those who employed them, although Vossler eventually did at
24 times. (Trial Tr. 329:5-19, July 14, 2010.)
25 124. Vossler chose not to reenlist in the active-duty Army after his tour of
26 service expired, instead enlisting in the Army National Guard, which he
27 left in June 2009. (Trial Tr. 332:21-333:25, July 14, 2010.)
28
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1 125. After leaving the military, Vossler became a vocal advocate for the
2 repeal of the Don't Ask, Don't Tell Act because he believes the Act
3 "doesn't seem in line with American values" and he "do[es]n't
4 understand how it's a law in [this] country" because he perceives the
5 Act to be discriminatory. (Trial Tr. 337:14-338:20, July 14, 2010.)
6 126. The Court found Vossler, in common with the other former military men
7 and women who testified at trial, a credible, candid, and compelling
8 witness.
9
10 The Don't Ask, Don't Tell Act
11 127. After taking office in 1992, President Clinton directed Secretary of
12 Defense Les Aspin to review his department's policy regarding
13 homosexuals serving in the military.
14 128. Congress undertook its own review and, in 1993, enacted the Don't
15 Ask, Don't Tell Act, which regulated the service of homosexual
16 personnel in the United States military. See National Defense
17 Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, 107 Stat.
18 1547 § 571, 10 U.S.C. § 654.
19 129. The Act contains a series of findings that mirror the concerns of then-
20 chairman of the Joint Chiefs of Staff Colin Powell's testimony before
21 Congress: "military life is fundamentally different from civilian life;"
22 "[s]uccess in combat requires military units that are characterized by
23 high morale, good order and discipline, and unit cohesion;" and "the
24 presence in the [A]rmed [F]orces of persons who demonstrate a
25 propensity of intent to engage in homosexual acts would create an
26 unacceptable risk to the high standards of morale, good order and
27
28
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1 discipline and unit cohesion that are the essence of military capability."
2 See 10 U.S.C. § 654(a); cf. S. Rep. No. 103-112 at 283 (1993).
3 130. The Act is codified at 10 U.S.C. § 654; under § 654(b), the Secretary of
4 Defense is authorized to formulate the implementing regulations, which
5 are comprised of Department of Defense Directives 1332.14 (1993),
6 1332.30 (1997), and 1304.26 (1993). The Secretary of Defense
7 recently changed the implementing regulations. See Department of
8 Defense Instruction ("DoDI") 1332.14 (2008) (incorporating March 29,
9 2010, changes); DoDI 1332.30 (2008) (incorporating March 29, 2010,
10 changes).
11 131. The statute provides that a member of the Armed Forces "shall be
12 separated" from military service under one or more of the following
13 circumstances.
14 a. First, a servicemember shall be discharged if he or she "has
15 engaged in, attempted to engage in, or solicited another to
16 engage in a homosexual act or acts." 10 U.S.C. § 654(b)(1).
17 b. Second, a servicemember shall be discharged if he or she "has
18 stated that he or she is a homosexual8 or bisexual,9 or words to
19 that effect . . . ." 10 U.S.C. § 654 (b)(2).
20 c. Third, a servicemember shall be discharged if he or she has
21 married or attempted to marry a person "known to be of the same
22 biological sex." 10 U.S.C. § 654 (b)(3).
23
24 8
"The term 'homosexual' means a person, regardless of sex, who
25 engages in, attempts to engage in, has a propensity to engage in, or intends
to engage in homosexual acts, and includes the terms 'gay' and 'lesbian'." 10
26 U.S.C. § 654 (f)(1).
9
27 "The term 'bisexual' means a person who engages in, attempts to
engage in, has a propensity to engage, or intends to engages in homosexual
28 and heterosexual acts." 10 U.S.C. § 654 (f)(2).
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1 132. The first two routes to discharge have escape clauses; that is,
2 discharges via either subsection (b)(1) or (b)(2) create a rebuttable
3 presumption which the servicemember may attempt to overcome.
4 Through this exception, a servicemember may rebut the presumption
5 by demonstrating the homosexual conduct which otherwise forms the
6 basis for the discharge under the Act meets five criteria, including inter
7 alia, that it is a "departure" from the servicemember's "usual and
8 customary behavior," is unlikely to recur, and was not accomplished by
9 use of force, coercion or intimidation. 10 U.S.C. § 654 (b)(1)(A)-(E).
10 133. An escape route also applies to the second basis for discharge under
11 the Act, the making of a statement that one is a homosexual. It allows
12 the servicemember to rebut the presumption thus created by
13 demonstrating that "he or she is not a person who engages in, attempts
14 to engage, or has a propensity to engage in, or intends to engage in
15 homosexual acts." 10 U.S.C. § 654 (2).
16
17 Defendants' Evidence
18 134. Defendants specifically identified only the following items of legislative
19 history as those upon which they rely in support of their contentions that
20 the Act significantly furthers governmental interests in military readiness
21 or troop cohesion, or that discharge is necessary to those interests: (1)
22 the Crittenden Report; (2) the PERSEREC Report; (3) the Rand Report;
23 and the testimony of the following witnesses during hearings on the
24 proposed Policy: (4) Dr. Lawrence Korb; (5) Dr. David Marlowe; (6) Dr.
25 William Henderson; and (7) General Colin Powell. Defendants did not
26 include precise citations to any portion of the above-referenced
27 materials to support the constitutionality of the Policy.
28
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1 a. The Crittenden Report (Trial Ex. 4)

2 The Crittenden Report, formally titled Report of the Board
3 Appointed to Prepare and Submit Recommendations to the Secretary
4 of the Navy for the Revision of Policies, Procedures, and Directives
5 Dealing with Homosexuals, was prepared by that Board in 1957. U.S.
6 Navy Captain S.H. Crittenden chaired the Board, which made detailed
7 recommendations regarding the manner in which discipline against
8 homosexual servicemembers should be imposed, including
9 circumstances in which discharge would be appropriate, and whether
10 discharge should be honorable or otherwise. The Report does not,
11 however, discuss the impact of the presence of homosexuals serving in
12 the Armed Forces on either military readiness or unit cohesion.
13 Instead, the Board assumed, without investigation, that the presence of
14 homosexuals had a negative effect and their exclusion was desirable,
15 without elaborating on the basis for those assumptions; the Report
16 never made any findings concerning the impact of homosexual
17 servicemembers on military operations.
18 Accordingly, the Crittenden Report is not evidence that discharge
19 of homosexual servicemembers significantly furthers government
20 interests in military readiness or troop cohesion, or that discharge is
21 necessary to those interests. The Report, in fact, is silent on those
22 interests.
23 It did conclude, however, that assumptions that homosexuals
24 present security risks and are unfit for military service are not well-
25 supported by evidence. The Report also generally found homosexuals
26 to be no more or less likely to be qualified to serve in the Armed Forces
27 than heterosexuals according to a number of measures.
28
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1 b. The PERSEREC Report (Trial Ex. 5)

2 The PERSEREC Report, formally titled "Nonconforming Sexual
3 Orientation in the Military and Society," was published in 1988 by the
4 Defense Personnel Security Research and Education Center and
5 authored by Theodore R. Sabin and Kenneth E. Karois. The Report is
6 a broad survey of then-prevailing legal trends regarding treatment of
7 homosexuals, scientific views on homosexuality, and the history of
8 social constructions of "nonconforming" sexual behavior. The Report
9 notes a legal trend toward increasingly recognizing rights of
10 homosexuals, a scientific trend toward recognizing homosexuality both
11 as biologically determined and as a normal condition not necessarily
12 indicating physical or mental disease, and a societal trend towards
13 increasing acceptance of homosexual behavior.
14 The PERSEREC Report generally dismisses traditional objections
15 to service by homosexuals in the military as abstract, intangible, and
16 tradition-bound. The Report cites no evidence that homosexual
17 servicemembers adversely affect military readiness or unit cohesion.
18 The Report discusses unit cohesion, but only to state that empirical
19 research on the effect of homosexual servicemembers on unit cohesion
20 is important and necessary in the future; it points to no existing
21 empirical data. In general, the Report suggests the military begin a
22 transition towards acceptance of homosexual servicemembers.
23
24 c. The Rand Report (Trial Ex. 8)
25 The Rand Report was prepared by the Rand Corporation's
26 National Defense Research Institute in 1993 at the request of the Office
27 of the Secretary of Defense, Les Aspin. The submitted summary of the
28
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1 Rand Report discusses only "Section 10," entitled "What Is Known

2 about Unit Cohesion and Military Performance," as that is the sole
3 section that bears on the issues presented here.
4 Foremost among the Rand Report's conclusions is that no
5 empirical evidence exists demonstrating the impact of an openly
6 homosexual servicemember on the cohesion of any military unit. In its
7 discussion of unit cohesion, the Report distinguished between social
8 cohesion – "the emotional bonds of liking and friendship of the
9 members of a unit" (Trial Tr. 872:3-4, July 16, 2010) and task cohesion
10 – "a shared commitment to the group's mission or task goals" (Trial Tr.
11 872:4-6, July 16, 2010); concluded that according to public literature,
12 only task cohesion has an even moderately positive correlation with unit
13 performance; and found after controlling for task cohesion, social
14 cohesion has almost no correlation to unit performance. The Report
15 further opines that an openly homosexual servicemember is more likely
16 to affect only social cohesion, rather than task cohesion, thus having
17 little to no impact on a unit's military performance.
18 The Report also concluded that merely assigning openly
19 homosexual servicemembers to a unit can decrease negative feelings
20 towards homosexuals, as fellow unit members tend to hold positive
21 views of other individuals simply because they have been arbitrarily
22 assigned to the same group. Moreover, contact with a group towards
23 which negative feelings are held tends to decrease negative feelings
24 towards that group; Professor Belkin described this phenomenon as
25 "familiarity breeds tolerance." (Trial Tr. 297:9-19, July 14, 2010.) The
26 Report opined that the relationship between negative feelings toward a
27 group would not necessarily translate into disruptive behavior, and that
28
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1 to the extent it did so translate, such behavior could be influenced and

2 controlled by appropriate institutional attitudes and attitudes of unit
3 leaders.
4
5 d. Testimony of Dr. Lawrence Korb (Trial Ex. 344 at 255)
6 Dr. Korb testified before the Senate Armed Services Committee
7 on March 31, 1993, concerning the likely impact on unit cohesion if
8 homosexuals were permitted to serve openly. According to Dr. Korb,
9 there was no empirical research to support the view that homosexual
10 servicemembers would disrupt unit cohesion, and that such evidence
11 could not be obtained without integrating homosexuals into the military.
12 Dr. Korb did concede, however, that in the short run immediately
13 following integration of homosexual servicemembers, some negative
14 effect on unit cohesion was likely, but did not point to any evidence in
15 support of this view. Dr. Korb testified concerning the experiences of
16 foreign militaries and domestic law enforcement agencies that had
17 integrated homosexual servicemembers, and stated that their
18 integration had not adversely affected unit cohesion or performance in
19 those entities.
20
21 e. Testimony of Dr. William Henderson (Trial Ex. 344 at 248)
22 Dr. Henderson testified before the Senate Armed Services
23 Committee on March 31, 1993, concerning the significance of unit
24 cohesion. Dr. Henderson testified that the "human element" is the most
25 important factor in warfare and the only force that motivates a unit to
26 fight rather than flee or take cover. Dr. Henderson testified that
27 creation of a cohesive unit is "significantly influenced by broad cultural
28
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1 values, norms, and characteristics that are the result of a common

2 socialization process and basic agreement among unit members about
3 cultural values." Dr. Henderson testified that two types of unit cohesion
4 exist: horizontal cohesion whereby troops identify with each other, and
5 vertical cohesion whereby troops identify with their leaders. A member
6 of the unit who refuses to conform to the unit's expectations will be
7 isolated, and will undermine the unit's cohesiveness. Based on the
8 views of servicemembers surveyed at that time, approximately 80% of
9 whom opposed integration of homosexuals, homosexual
10 servicemembers were so far outside the acceptable range of shared
11 cultural values that they would not be accepted within military units, and
12 would undermine unit cohesion. Dr. Henderson pointed to no specific
13 empirical study supporting this assertion, however, and measured his
14 testimony by suggesting that a homosexual servicemember who did not
15 disclose his orientation would not disrupt unit cohesion.
16
17 f. Testimony of Dr. David Marlowe (Trial Ex. 344 at 261)
18 Dr. Marlowe testified before the Senate Armed Services
19 Committee on March 31, 1993, concerning the significance of unit
20 cohesion. He testified similarly to Dr. Henderson in his description of
21 the importance of unit cohesion and of the two types of cohesion, i.e.,
22 horizontal and vertical cohesion. While openly acknowledging that in
23 his scientific opinion, there was no empirical data conclusively deciding
24 the question, he opined that openly serving homosexuals could
25 undermine unit cohesion because homosexuality would not be an
26 accepted cultural value among the other members of the unit. Dr.
27 Marlowe qualified his opinion more than Dr. Henderson, however, as
28
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1 Dr. Marlowe also opined that a homosexual servicemember who did not
2 "flaunt" his or her homosexuality, acted as a soldier first and foremost,
3 and did not openly discuss his or her homosexuality would not
4 undermine unit cohesion. Dr. Marlowe foresaw no problem with such a
5 person serving in the Armed Forces.
6
7 g. Testimony of General Colin Powell (Trial Ex. 344 at 707)
8 General Colin Powell testified before the Senate Armed Services
9 Committee on July 20, 1993. General Powell expressed his general
10 support for the Policy as then proposed by President Clinton. General
11 Powell testified that in his opinion open homosexuality was
12 incompatible with military service and would undermine unit cohesion.
13 General Powell opined that "behavior too far away from the norm
14 undercuts the cohesion of the group." He testified to his belief that
15 military training on tolerance could not overcome the innate prejudices
16 of heterosexual servicemembers. He also testified that the Policy
17 would improve military readiness, but only in that it settled the question
18 of whether or not homosexuals could serve in the military, as the public
19 debate had been a recent distraction to the military. His testimony
20 implied that any final resolution of the issue, regardless of substance,
21 would improve military readiness.
22 General Powell testified that despite the official position of
23 nondiscrimination towards homosexuals in the militaries of countries
24 such as Canada, Germany, Israel, and Sweden, practice does not
25 always match policy, and homosexuals often are subjected to
26 discrimination in those militaries. General Powell also rejected
27 attempts to draw parallels between exclusion of homosexuals and
28
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1 historical exclusion of African-Americans, because "skin color is a

2 benign nonbehavioral characteristic, while sexual orientation is perhaps
3 the most profound of human behavioral characteristics."
4
5 Plaintiff's Evidence: Reports, Exhibits and Expert and Lay Testimony
6 135. Plaintiff introduced evidence demonstrating the Act does not
7 significantly advance the Government's interests in military readiness or
8 unit cohesion. The testimony of former servicemembers provides
9 ample evidence of the Act's effect on the fundamental rights of
10 homosexual members of the United States military. Their testimony
11 also demonstrates that the Act adversely affects the Government's
12 interests in military readiness and unit cohesion. In addition to the
13 testimony from the lay witnesses, Plaintiff introduced other evidence,
14 from witnesses in such specialties as national security policy, military
15 sociology, military history, and social psychology, on whether the Act
16 furthered the Government's interests in military readiness or unit
17 cohesion.
18
19 Discharge of Qualified Servicemembers Despite Troop Shortages
20 136. From 1993 through 2009, Defendants discharged, pursuant to the Act,
21 over 13,000 men and women serving in the United States Armed
22 Forces. During the years between 1994 through 2001, Defendants
23 discharged at least 7,856 servicemembers under the Act, according to
24 a General Accounting Office Report entitled "Financial Costs and Loss
25 of Critical Skills." (Trial Ex. 9 [2005 Government Accountability Office
26 ("GAO") Report on the "Financial Costs and Loss of Critical Skills Due
27 to [the] DOD's Homosexual Conduct Policy"].)
28
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1 137. The combined branches of the Armed Forces discharged the following
2 numbers of servicemembers from 1994, the first full year after adoption
3 of the Don't Ask, Don't Tell Act, through the calendar year 2001:
4
5 Number of Servicemembers
6 Year
Discharged
7 1994 61610
8 1995 75711
9 1996 85812
10 1997 99713
1998 1,14514
11
1999 1,04315
12
2000 1,21316
13 2001 1,22717
14
Total discharged 1994 2001 7,856
15
16
17
18 10
(Trial Ex. 9, at 8; but see id. at 42 (showing 616 servicemembers
19 discharged).)
11
20 (Trial Ex. 9, at 8.)
12
21 (Id.)
13
22 (Trial Ex. 85, Defs.' Objections and Resp. to Pl's. First Set of Req. for
Admis. ("RFA Resp.") No. 33; Trial Ex. 9, at 8.)
23 14
(Trial Ex. 85, RFA Resp. No. 34; Trial Ex. 9, at 8.)
24 15
(Trial Ex. 85, RFA Resp. No. 35; Trial Ex. 9, at 8; but see id. at 42
25 (showing 1,034 servicemembers discharged).)
16
26 (Trial Ex. 85, RFA Resp. No. 36; Trial Ex. 9, at 8; but see id. at 42
(showing 1,213 servicemembers discharged).)
27 17
(Trial Ex. 85, RFA Resp. No. 37; Trial Ex. 9, at 8; but see id. at 42
28 (showing 1,227 servicemembers discharged).)
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1 138. Starting in 2002, after the United States began fighting in Afghanistan,
2 the number of servicemembers discharged under the Act fell sharply,
3 despite the greater raw number of military personnel. As but one
4 example, in 2001, Defendants discharged at least 1,217
5 servicemembers pursuant to the Don't Ask, Don't Tell Act. In 2002, the
6 number discharged under the Act fell to 885.
7 Year Number of Servicemembers
8 Discharged
9 2002 88518
10 2003 77019
11 2004 65320
12 2005 72621
2006 61222
13
2007 62723
14
2008 61924
15 2009 27525
16
Total discharged 2002-2009 5,167
17
18
19
18
20 (Trial Ex. 85, RFA Resp. No. 38; but see Trial Ex. 9, at 8 (showing
884 servicemembers discharged).)
21 19
(Trial Ex. 85, RFA Resp. No. 39; but see Trial Ex. 9, at 8 (showing
22 769 servicemembers discharged).)
20
23 (Trial Ex. 85, RFA Resp. No. 40.)
21
22
23
24
25
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1 139. The decline in discharges after 2001, according to Dr. Nathaniel Frank,
2 illustrates that during wartime the military retains servicemembers
3 known to be homosexual, despite the Don't Ask, Don't Tell Act requiring
4 discharge, because of the heightened need for troops. (Trial Tr. 196:5-
5 198:6, 257:21-258:6, July 13, 2010.)
6
7 Discharge of Servicemembers with Critically Needed Skills and Training
8 140. Among those discharged pursuant to the Act were many
9 servicemembers with critically needed skills. According to the
10 Government's own data, many of those discharged pursuant to the Act
11 had education, training, or specialization in so-called "critical skills,"
12 including Arabic, Chinese, Farsi, or Korean language fluency; military
13 intelligence; counterterrorism; weapons development; and medicine.
14 (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from
15 furthering the military's readiness, the discharge of these service men
16 and women had a direct and deleterious effect on this governmental
17 interest.
18 141. For example, relying on the 2005 GAO Report on the "Financial Costs
19 and Loss of Critical Skills Due to [the] DOD's Homosexual Conduct
20 Policy" (Trial Ex. 9), Professor Frank pointed out that through fiscal year
21 2003, several hundred medical professionals had been discharged
22 pursuant to the Act, yet a 2003 Senate report described a lack of
23 medical care for wounded troops returning from the Arabian Gulf and
24 the resulting negative impact on physical health and troop morale.
25 (Trial Tr. 258:10-259:2, July 15, 2010.) At the same time that more
26 than one-hundred thousand U.S. troops were deployed to serve in
27 combat in Iraq and Afghanistan, several hundred servicemembers with
28
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1 "critical" language skills, including many qualified as Farsi and Arabic

2 speakers and interpreters, were discharged under the Act. (Trial Ex. 9;
3 Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010.)
4
5 The Act's Impact on Military Recruiting
6 142. Dr. Lawrence Korb, currently a senior fellow at the Center for American
7 Progress, with an extraordinary background in military preparedness
8 and national security issues,26 including an appointment under
9 President Ronald Reagan as an Assistant Secretary in the Department
10 of Defense, testified before Congress in 2007 about the difficulty the
11 military was experiencing in finding and retaining enough qualified
12 recruits. The crisis in recruiting qualified candidates became
13 particularly severe after combat began in 2001, he testified. (Trial Tr.
14 1027:24-25, 1028:1-2, July 20, 2010.)
15 143. In general, successful military recruiting efforts come with a very high
16 price tag; Dr. Korb pointed to advertisements various branches of the
17 Armed Forces run during the televised Super Bowl football games as
18 an example of an effective but very costly recruiting tool. Successful
19 recruiting includes not only the costs for sending out military recruiters
20 all around the country, but also the costs of conducting medical and
21 educational testing on recruits as well as the expense of their basic
22 training. The size of the financial investment needed to prepare a
23
24 26
In addition to the appointments described above, Dr. Korb is on the
25 faculty at Georgetown University. He also has served as dean of the
Graduate School of Public and International Affairs at the University of
26 Pittsburgh, on the Council for Foreign Relations, as Director of the Center for
Public Policy Education at the Brookings Institution, and as Director for
27 Defense Policy Studies for the American Enterprise Institute. This is only a
partial list of his appointments and service. (Trial Ex. 350.) The Court found
28 Dr. Korb an extraordinarily well-credentialed and powerfully credible witness.
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1 servicemember for an operational unit can reach millions of dollars. Dr.

2 Korb testified. (Trial Tr. 1028:18-1029:13, July 20, 2010.) Citing a
3 Pentagon study, Dr. Korb opined that for every person discharged after
4 ten years of service, six new servicemembers would need to be
5 recruited to recover the level of experience lost by that discharge. (Trial
6 Tr. 1029:6-23, July 20, 2010.)
7 144. With that background, Dr. Korb opined the Don't Ask, Don't Tell Act
8 negatively affects military recruiting in two ways: its existence
9 discourages those who would otherwise enlist from doing so, and many
10 colleges and universities will not permit military recruiting or Army
11 ROTC programs on campus because the Act's requirements violate
12 their nondiscrimination policies. (Trial Tr. 1030:12-21, July 20, 2010.)
13 145. Dr. Korb estimated that the military loses 5,000 men and women
14 annually due to the Don't Ask, Don't Tell Act, if one includes both those
15 who are discharged under it and those who decide not to re-enlist
16 because of it. He conceded, however, that it is very difficult to quantify
17 the number of those who decide not to enlist because of the Policy.
18 (Trial Tr. 1030:1-10, July 20, 2010.) Professor Frank also testified on
19 this subject, and based on data from the U.S. Census, the UCLA
20 School of Law Williams Institute, and other sources, opined that if the
21 Act were repealed, the military would gain approximately 40,000 new
22 recruits and approximately 4,000 members would re-enlist every year
23 rather than leave voluntarily. (Trial Tr. 205:6-17, July 13, 2010.)
24 146. The 2005 GAO Report estimated that over the ten-year period after
25 enactment of the Act, "it could have cost the [Department of Defense]
26 about $95 million in constant fiscal year 2004 dollars to recruit
27 replacements for service members separated under the policy. Also
28
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1 the Navy, Air Force, and Army estimated that the cost to train
2 replacements for separated service members by occupation was
3 approximately $48.8 million, $16.6 million, and $29.7 million,
4 respectively." (Trial Ex. 85, RFA Resp. No. 21.)
5
6 Admission of Lesser Qualified Enlistees
7 147. Defendants discharged over 13,000 members of the Armed Forces
8 under the Don't Ask, Don't Tell Act since 1993. (Trial Tr. 195:5-8,
9 203:21-204:5.) Plaintiff introduced evidence that while Defendants
10 continued to enforce the Act by discharging servicemembers under it –
11 albeit in dramatically reduced numbers – after 2001, they also began to
12 admit more convicted felons and misdemeanants into the Armed
13 Forces, by granting so-called "moral waivers"27 to the policy against
14 such admissions. (Trial Tr. 199:1-17, July 13, 2010; see supra notes
15 10-25 and accompanying text.)
16 148. In addition to the increased numbers of convicted felons and
17 misdemeanants allowed to join the ranks of the military forces,
18 Professor Frank testified that increased numbers of recruits lacking the
19 required level of education and physical fitness were allowed to enlist
20 because of troop shortages during the years following 2001. (Trial Tr.
21 199:1-11, July 13, 2010.) Log Cabin's evidence went uncontradicted
22 that those who are allowed to enlist under a "moral waiver" are more
23 likely to leave the service because of misconduct and more likely to
24
25
26 27
"Moral waivers" are used to admit recruits who otherwise would not
27 have been eligible for admission because of their criminal records, i.e.,
convictions for felonies and serious misdemeanors, or admitted past
28 controlled substance abuse. (Trial Tr. 207:7-208:24, July 13, 2010.)
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1 leave without fulfilling their service commitment than others who joined
2 the Armed Forces. (Trial Tr. 209:2-13, July 13, 2010.)
3 149. Dr. Korb testified that eventually the troop shortages after 2001 caused
4 the U.S. Armed Forces to lower educational and physical fitness entry
5 standards as well as increase the number of "moral waivers" to such an
6 extent that, in his opinion, it became difficult for the military to carry out
7 its mission. (Trial Tr. 1020:22-1021:11, July 20, 2010.) At the same
8 time, discharging qualified servicemembers under the Don't Ask, Don't
9 Tell Act simply "does not make sense" in terms of military preparedness
10 because, in his words, the military is "getting rid of those who are
11 qualified to serve and admitting those who aren't." (Trial Tr. 1025:15-
12 20, July 20, 2010.)
13
14 Other Effects of the Policy
15 150. Dr. Korb testified about other effects the Don't Ask, Don't Tell Act has
16 on military preparedness. He opined that in order for the military to
17 perform its mission successfully, it must mold persons from vastly
18 different backgrounds who join it into a united and task-oriented
19 organization. He described the military as a meritocracy, but testified
20 that the Don't Ask, Don't Tell Act detracts from the merit-based nature
21 of the organization, because discharges under the Act are not based on
22 the servicemember's failure to perform his or her duties properly, or on
23 the effect of the soldier's presence on the unit's morale or cohesion.
24 (Trial Tr. 1031:2-1033:10, July 20, 2010.)
25
26
27
28
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1 Decreased and Delayed Discharge of Suspected Violators of the Act

2 151. LCR also produced evidence demonstrating that Defendants routinely
3 delayed the discharge of servicemembers suspected of violating the
4 Act's provisions until after they had completed their overseas
5 deployments. In other words, if Defendants began an investigation of a
6 servicemember suspected of violating the Act, the investigation would
7 be suspended if the subject received deployment orders; not until he or
8 she returned from combat – assuming this occurred, of course – would
9 the investigation be completed and the servicemember discharged if
10 found to have violated the Act. Thus, Defendants deployed
11 servicemembers under investigation for violating the Act to combat
12 missions or, if they were already so deployed, delayed the completion
13 of the investigation until the end of the deployment. (Trial Tr. 196:5-24,
14 July 13, 2010; 573:7-17, July 15, 2010; Brady Dep. 184:13-185:11,
15 188:13-190:9, Apr. 16, 2010.)
16 152. This evidence, in particular, directly undermines any contention that the
17 Act furthers the Government's purpose of military readiness, as it
18 shows Defendants continue to deploy gay and lesbian members of the
19 military into combat, waiting until they have returned before resolving
20 the charges arising out of the suspected homosexual conduct. If the
21 warrior's suspected violation of the Act created a threat to military
22 readiness, to unit cohesion, or to any of the other important
23 Government objectives, it follows that Defendants would not deploy him
24 or her to combat before resolving the investigation. It defies logic that
25 the purposes of the Act could be served by suspending the
26 investigation during overseas deployments, only to discharge a
27 servicemember upon his or her return to a non-combat station.
28
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1 153. Taken as a whole, the evidence introduced at trial shows that the effect
2 of the Act has been, not to advance the Government's interests of
3 military readiness and unit cohesion, much less to do so significantly,
4 but to harm that interest. The testimony demonstrated that since its
5 enactment in 1993, the Act has harmed efforts of the all-volunteer
6 military to recruit during wartime.
7 154. The Act has caused the discharge of servicemembers in occupations
8 identified as "critical" by the military, including medical professionals
9 and Arabic, Korean, and Farsi linguists.
10 155. At the same time that the Act has caused the discharge of over 13,000
11 members of the military, including hundreds in critical occupations, the
12 shortage of troops has caused the military to permit enlistment of those
13 who earlier would have been denied entry because of their criminal
14 records, their lack of education, or their lack of physical fitness.
15
16 The Act is Not Necessary to Advance the Government's Interests
17 Defendants' Admissions
18 156. Defendants have admitted that, far from being necessary to further
19 significantly the Government's interest in military readiness, the Don't
20 Ask, Don't Tell Act actually undermines that interest. President Obama,
21 the Commander-in-Chief of the Armed Forces, stated on June 29,
22 2009:
23 "Don't Ask, Don't Tell" doesn't contribute to our national
security . . . preventing patriotic Americans from serving their
24 country weakens our national security . . . . [R]eversing this
policy [is] the right thing to do [and] is essential for our national
25 security.
(Trial Ex. 305; Trial Ex. 85, RFA Resp. Nos. 1, 2, 9.)
26
27
28
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1 157. President Obama also stated regarding the Act on October 10, 2009,
2 "We cannot afford to cut from our ranks people with the critical skills we
3 need to fight any more than we can afford – for our military's integrity –
4 to force those willing to do so into careers encumbered and
5 compromised by having to live a lie." (Trial Ex. 306; Trial Ex. 85, RFA
6 Resp. No. 12.)
7 158. Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, echoed
8 these sentiments through a verified Twitter account, posted to the Joint
9 Chiefs of Staff website: "Stand by what I said [testifying in the U.S.
10 Senate Armed Services Committee on February 2, 2010]: Allowing
11 homosexuals to serve openly is the right thing to do. Comes down to
12 integrity." (Trial Ex. 330.)
13
14 Defendants' Contention that the Act is Necessary to Protect Unit
15 Cohesion and Privacy
16 159. Defendants point to the Act's legislative history and prefatory findings
17 as evidence that the Policy is necessary to protect unit cohesion and
18 heterosexual servicemembers' privacy. In particular, they quote and
19 rely on General Colin Powell's statements in his testimony before
20 Congress in 1993.
21 160. General Powell expressed his qualified support for the continued
22 service of gays and lesbians in the Armed Forces and the narrow
23 nature of his concerns. (Trial Ex. 344 [Policy Concerning
24 Homosexuality in the Armed Forces: Hearings Before the S. Comm. on
25 Armed Servs., 103rd Cong. (statement of General Colin Powell,
26 Chairman, Joint Chiefs of Staff)] at 709). He emphasized his concern
27 that "active military service is not an everyday job in an ordinary
28
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1 workplace . . . . There is often no escape from the military environment

2 for days, weeks and often months on end. We place unique demands
3 and constraints upon our young men and women not the least of which
4 are bathing and sleeping in close quarters." (Id. at 762; 709 ("Our
5 concern has not been about homosexuals seducing heterosexuals or
6 heterosexuals attacking homosexuals . . . .").)
7 161. Plaintiff introduced uncontradicted testimony that General Powell has
8 changed his views since 1993 on the necessity of the Policy and now
9 agrees with the current Commander-in-Chief that it should be reviewed.
10 (Trial Tr. 221:7-11, July 13, 2010.)
11 162. Plaintiff also produced powerful evidence demonstrating that the Act is
12 not necessary in order to further the governmental interest that General
13 Powell expressed, i.e., unit cohesion and particularly the concern that
14 cohesion might be eroded if openly homosexual servicemembers
15 shared close living quarters with heterosexuals.
16 163. Michael Almy, who during thirteen years of active service lived in
17 dozens of different types of military housing on at least three
18 continents, testified his quarters ranged from a villa in Eskan Village,
19 Saudi Arabia, where he and the others quartered there each had
20 private bedrooms and bathrooms, to a dormitory-type facility at the
21 Prince Sultan Air Base in Saudi Arabia, where at first he had a private
22 room and bath until the troop build-up before the invasion of Iraq led to
23 several men sharing a room, with a private bathroom that was used by
24 only one person at a time, to temporary quarters in a tent at Balad Air
25 Base in Iraq shared by six to eight men who obtained limited privacy by
26 hanging up sheets.
27
28
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1 164. In his deployments to Saudi Arabia and Iraq, Almy was never quartered
2 in housing that had open bay showers, nor did he ever see such
3 housing for enlisted members or officers. (Trial Tr. 748:3-750:25, July
4 16, 2010.) The typical arrangement in Saudi Arabia was for enlisted
5 servicemembers and officers to have the same type of facilities,
6 including bathroom and shower facilities; officers typically did not have
7 to share rooms, and enlisted personnel usually shared a bedroom and
8 bathroom. (Trial Tr. 750:14-25, July 16, 2010.) Open bay showers are
9 the exception in military quarters; most service members only use them
10 during basic training. (Trial Tr. 759:12-19, July 16, 2010.)
11 165. Similarly, John Nicholson testified that while he was in basic training in
12 Fort Benning, the recruits slept in a large open room with sixty bunk
13 beds and shared a large communal bathroom with toilets in individual
14 stalls and semi-private showers. (Trial Tr. 1154:25-1155:15, July 20,
15 2010.) Anthony Loverde testified that only during basic training was he
16 housed in barracks where open bay showers were the only option; he
17 had access to single stall shower facilities even when stationed at
18 Bagram Air Base in Afghanistan and at Balad Air Base in Iraq. (Trial
19 Tr. 1378:3-15, 1385:18-1386:12, July 21, 2010.)
20 166. Other servicemembers confirmed this testimony. Stephen Vossler
21 testified regarding his living quarters while he served as an enlisted
22 man in the Army; he shared a "not spacious" bedroom and also a
23 bathroom with a roommate. (Trial Tr. 330:4-11, July 14, 2010.)
24 Although Vossler learned his roommate was gay, Vossler had no
25 problems sharing quarters with him and thought he was a good
26 roommate. (Trial Tr. 329:20-330:21, July 14, 2010.)
27
28
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1 167. Professor Aaron Belkin confirmed this evidence in his testimony; his
2 research into military architecture revealed that apart from basic
3 training sites and service academies where there are open showers,
4 servicemembers usually have access to single stall showers. (Trial Tr.
5 617:21-619:1, July 15, 2010.) According to Professor Belkin, "the army,
6 in recent years, has implemented something called the one-plus-one
7 barracks design standard. What that means is that servicemembers
8 are housed in an arrangement where they each have their own
9 bedroom and there is a bathroom between the two bedrooms that they
10 share." (Trial Tr. 618:8-13, July 15, 2010.) Three-fourths of the troops
11 quartered in combat zones in Afghanistan and Iraq had access to single
12 stall showers, according to his research. (Trial Tr. 626:3-8, July 15,
13 2010.)
14 168. Plaintiff's evidence regarding unit cohesion was equally plentiful and
15 persuasive. The testimony of both its lay and expert witnesses
16 revealed that the Act not only is unnecessary to further unit cohesion,
17 but also harms the Government's interest.
18 169. After Michael Almy was relieved of his command abruptly under the
19 Act, he witnessed firsthand what occurred when an unprepared junior
20 officer was forced to take over. He testified that "[t]he maintenance of
21 the equipment, the mission overall, the availability – the up time of the
22 equipment, the availability of the equipment to meet the mission
23 suffered" and there was "a huge detrimental effect to the morale" of the
24 troops he commanded after he was relieved of his command. (Trial Tr.
25 813:21-25, 814: 1-6, July 16, 2010.) Almy testified, "Virtually every day
26 on my base on Spangdahlem, I would encounter one of my former
27 troops who wanted me back on the job as their officer and leader."
28
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1 (Trial Tr. 814:2-6, July 16, 2010.) His assessment was confirmed by
2 another officer in the squadron, who wrote that the squadron "fell apart"
3 after Major Almy was relieved of his duties, illustrating "how important
4 Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex.
5 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt.,
6 USAF, 606th Air Control Squadron].)
7 170. Jenny Kopfstein's commanding officer wrote that she was a "hard
8 working and dedicated junior officer who excelled as an [o]fficer of the
9 [d]eck" who "played an important role in enhancing the ship's strong
10 reputation." (Trial Ex. 139 [Jenny L. Kopfstein Fitness Report and
11 Counseling Record]; Trial Tr. 966:14-17.) He specifically noted that
12 "[h]er sexual orientation has not disrupted good order and discipline on
13 board USS SHILOH." (Trial Ex. 139; Trial Tr. 966:23-24.) Kopfstein
14 testified that after she stopped concealing her homosexuality while
15 serving on the USS Shiloh, she had many positive responses, and the
16 ability of her fellow crew members to trust her improved, thus aiding the
17 establishment of teamwork. (Trial Tr. 951:10-11, 979:8-21, 25, 980:1,
18 July 20, 2010.)
19 171. Anthony Loverde's superiors unquestionably felt that his discharge
20 pursuant to the Don't Ask, Don't Tell Act did not further the
21 Government's interest in unit cohesion. In recommending the Air Force
22 retain Loverde, they commended him for being "nothing less than an
23 outstanding [non-commissioned officer]" and "a strong asset" with "an
24 exceptional work ethic" and "the highest level of military bearing,
25 honesty, and trustworthiness." (Trial Exs. 136 [Letter from Michael
26 Yakowenko, CM Sgt.], 137 Letter from Richard Horn, SM Sgt.].) One
27 wrote: "If I ever had the opportunity to build my 'dream team' for work, I
28
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1 would take an entire crew of SSgt. Loverde over most other workers . . .
2 ." (Trial Ex. 137.)
3 172. Robert MacCoun, Professor of Law and Public Policy at the University
4 of California, Berkeley, and one of the contributors to the 1993 Rand
5 Report on the Don't Ask, Don't Tell Act, testified regarding social and
6 task cohesion. (Trial Tr. 864:11-866-17, 870:22-875:25, July 16, 2010.)
7 Professor MacCoun holds a Ph.D. in psychology from Michigan State
8 University, was a post-doctoral fellow in psychology and law at
9 Northwestern University, spent seven years as a behavioral scientist at
10 the RAND Corporation,28 and has a distinguished research and
11 publication record. (Trial Tr. 856:16-864:7, July 16, 2010.) The Court
12 found his testimony cogent and persuasive.
13 173. According to Professor MacCoun, the RAND working group concluded
14 that task cohesion was paramount; it was a more important predictor of
15 military performance than social cohesion, and service in the Armed
16 Forces by openly homosexual members was not seen as a serious
17 threat to task cohesion. (Trial Tr. 871:23-872:6, 873:24-875:4, 875:21-
18 25, 876:13-21, July 16, 2010.) Therefore, the recommendation to
19 Secretary of Defense Les Aspin from the RAND Corporation in the1993
20 Report was that sexual orientation should not be viewed as germane to
21 service in the military; the 1993 Report made various recommendations
22 regarding the implementation of this change. (Trial Ex. 8 [Sexual
23 Orientation and U.S. Military Personnel Policy: Options and
24 Assessment] at 368-94; Trial Tr. 865:8-879:9, July 16, 2010.)
25
26
28
27 The RAND Corporation is a nonpartisan, private, nonprofit research
corporation, conducting public policy research. (Trial Tr. 858:2-3, July 16,
28 2010.)
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1 174. Thus, the evidence at trial demonstrated that the Act does not further
2 significantly the Government's important interests in military readiness
3 or unit cohesion, nor is it necessary to further those interests.
4 Defendants' discharge of homosexual servicemembers pursuant to the
5 Act not only has declined precipitously since the United States began
6 combat in Afghanistan in 2001, but Defendants also delay individual
7 enforcement of the Act while a servicemember is deployed in a combat
8 zone. If the presence of a homosexual soldier in the Armed Forces
9 were a threat to military readiness or unit cohesion, it surely follows that
10 in times of war it would be more urgent, not less, to discharge him or
11 her, and to do so with dispatch.
12 175. The abrupt and marked decline – 50% from 2001 to 2002 and steadily
13 thereafter – in Defendants' enforcement of the Act following the onset of
14 combat in Afghanistan and Iraq, and Defendants' practice of delaying
15 investigation and discharge until after combat deployment, demonstrate
16 that the Act is not necessary to further the Government's interest in
17 military readiness.
18 176. In summary, Defendants have failed to show the Don't Ask, Don't Tell
19 Policy "significantly furthers" the Government's interests or that it is
20 "necessary" in order to achieve those goals. Plaintiff has relied not just
21 on the admissions described above that the Act does not further military
22 readiness, but also has shown the following:
23 • by impeding the efforts to recruit and retain an all-volunteer
24 military force, the Act contributes to critical troop shortages and
25 thus harms rather than furthers the Government's interest in
26 military readiness;
27
28
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1 • by causing the discharge of otherwise qualified servicemembers

2 with critical skills such as Arabic, Chinese, Farsi, and Korean
3 language fluency; military intelligence; counterterrorism; weapons
4 development; and medical training, the Act harms rather than
5 furthers the Government's interest in military readiness;
6 • by contributing to the necessity for the Armed Forces to permit
7 enlistment through increased use of the "moral waiver" policy and
8 lower educational and physical fitness standards, the Act harms
9 rather than furthers the Government's interest in military
10 readiness;
11 • Defendants' actions in delaying investigations regarding and
12 enforcement of the Act until after a servicemember returns from
13 combat deployment show that the Policy is not necessary to
14 further the Government's interest in military readiness or unit
15 cohesion;
16 • by causing the discharge of well-trained and competent
17 servicemembers who are well-respected by their superiors and
18 subordinates, the Act has harmed rather than furthered unit
19 cohesion and morale;
20 • the Act is not necessary to protect the privacy of servicemembers
21 because military housing quarters already provide sufficient
22 protection for this interest.
23 177. The Don't Ask, Don't Tell Act infringes the fundamental rights of United
24 States servicemembers in many ways, some described above. The Act
25 denies homosexuals serving in the Armed Forces the right to enjoy
26 "intimate conduct" in their personal relationships.
27
28
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1 178. The Act denies them the right to speak about their loved ones while
2 serving their country in uniform; it punishes them with discharge for
3 writing a personal letter, in a foreign language, to a person of the same
4 sex with whom they shared an intimate relationship before entering
5 military service.
6 179. The Act discharges them for including information in a personal
7 communication from which an unauthorized reader might discern their
8 homosexuality.
9 180. Michael Almy, Anthony Loverde, and Jenny Kopfstein all testified that
10 the Act prevented them from talking openly with their fellow
11 servicemembers about everyday personal matters or from soliciting
12 after hours with their colleagues. (Trial Tr. 821:19-822:9, July 16, 2010
13 (Almy); Trial Tr. 1360:1-1361:17, July 21, 2010 (Loverde); Trial Tr.
14 931:22-932:11, July 16, 2010; Trial Tr. 957:6-22, July 20, 2010
15 (Kopfstein).) This testimony, as well as that from Steven Vossler (Trial
16 Tr. 327:12-328:20, July 14, 2010), demonstrates that the Act's
17 restrictions on speech not only are broader than reasonably necessary
18 to protect the Government's substantial interests, but also actually
19 impede military readiness and unit cohesion rather than further these
20 goals.
21 181. Many of the lay witnesses also spoke of the chilling effect the Act had
22 on their ability to bring violations of military policy or codes of conduct to
23 the attention of the proper authorities. Joseph Rocha, eighteen- years-
24 old and stationed in Bahrain, felt restrained from complaining about the
25 extreme harassment and hazing he suffered because he feared that he
26 would be targeted for investigation under the Act if he did so. (Trial Tr.
27 488:20-489:14, July 15, 2010.) His fear was so great, if fact, that he
28
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1 initially refused to answer the questions of an investigating officer.

2 (Trial Tr. 519:16-510:10-15, July 15, 2010.)
3 182. John Nicholson and Anthony Loverde also testified about a similar
4 chilling effect on their speech when overhearing or being subjected to
5 homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July
6 20, 2010 (Nicholson); Trial Tr. 1364:16-1365:25, July 21, 2010
7 (Loverde).)
8 183. The Act prevents servicemembers from openly joining organizations,
9 such as the plaintiff in this lawsuit, that seek to change the military's
10 policy on gay and lesbian servicemembers; it also prevents them from
11 petitioning the Government for redress of grievances. John Doe, for
12 example, feared retaliation and dismissal if he joined the Log Cabin
13 Republicans under his true name or testified during trial; thus, he was
14 forced to use a pseudonym and to forgo testifying during trial. (Ex. 38
15 [Doe Decl.] ¶¶ 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-
16 709:4, July 16, 2010.)
17 184. Furthermore, as discussed above, the Act punishes servicemembers
18 with discharge for writing a private letter, in a foreign language, to a
19 person of the same sex with whom they shared an intimate relationship
20 before volunteering for military service. It subjects them to discharge
21 for writing private e-mail messages, in a manner otherwise approved, to
22 friends or family members, if those communications might lead the
23 (unauthorized) reader to discern the writer's sexual orientation.
24 185. These consequences demonstrate that the Act's restrictions on speech
25 are broader than reasonably necessary to protect the Government's
26 interest.
27
28
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1 186. The Act's restrictions on speech lead to the discharge of

2 servicemembers with qualifications in critically-needed occupations,
3 such as foreign language fluency and information technology.
4 187. The net effect of these discharges, as revealed not only in the
5 testimony of the lay witnesses but also of the experts who testified and
6 Defendants' own admissions regarding the numbers of servicemembers
7 discharged and the costs of recruiting and maintaining an all-volunteer
8 military force, compel the conclusion that the Act restricts speech more
9 than reasonably necessary to protect the Government's interests.
10
11 CONCLUSIONS OF LAW
12 Jurisdiction
13 1. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§
14 1331, 1346 and 2201. Venue is properly laid in the Central District of
15 California under 28 U.S.C. § 1391(e)(2) and (3).
16
17 Standing
18 2. Plaintiff Log Cabin Republicans, a non-profit corporation, has
19 established standing to bring and maintain this suit on behalf of its
20 members.
21 3. Plaintiff bears the burden of establishing its standing to invoke federal
22 jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
23 (1992).
24 4. To bring suit on behalf of its members, an association must establish
25 the following: "(a) [at least one of] its members would otherwise have
26 standing to sue in [his or her] own right; (b) the interests it seeks to
27 protect are germane to the organization's purpose; and (c) neither the
28
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1 claim asserted nor the relief requested requires the participation of

2 individual members in the lawsuit." Hunt v. Wash. State Apple Adver.
3 Comm'n, 432 U.S. 333, 343 (1977).
4 5. To satisfy the first element of associational standing, a organization
5 must demonstrate constitutional standing as to at least one member of
6 the organization, as follows: (1) injury in fact; (2) caused by the
7 defendants; (3) which likely will be redressed by a favorable decision by
8 the federal court. Lujan, 504 U.S. at 560-61; see also Elk Grove
9 Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).
10 6. As to the associational standing requirements, Plaintiff established at
11 trial that the interests it seeks to vindicate in this litigation are germane
12 to LCR's purposes, satisfying the second requirement for associational
13 standing.
14 7. Plaintiff satisfied the third requirement of associational standing, "that
15 the suit not demand the participation of individual members."
16 Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d
17 1401, 1408 (9th Cir. 1991) (citations omitted). Plaintiff seeks only
18 declaratory and injunctive relief in its First Amended Complaint; when
19 "the claims proffered and relief requested do not demand individualized
20 proof on the part of its members," such as when only declaratory and
21 prospective relief are sought, the individual members of an association
22 need not participate directly in the litigation. Id.; see also Hunt, 432
23 U.S. at 343 (citing Warth v. Seldin, 422 U.S. 490, 515 (1975)).
24 8. Plaintiff satisfied the first requirement of associational standing as well,
25 i.e., whether there exists at least one member of the association who
26 could maintain this suit in his or her own right. Defendants' contention
27 that neither of the two members Plaintiff relies upon to confer
28
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1 associational standing on it meets the requirements for that role,

2 because neither was a member of Log Cabin Republicans continuously
3 from the date of the commencement of this action until the date of trial,
4 lacks merit.
5 9. Standing in this case should be examined as of April 28, 2006, the date
6 Plaintiff filed its First Amended Complaint. (See Doc. No. 170 at 15.)
7 As of that date, at least one of Log Cabin's members, John Nicholson,
8 had standing and could have pursued the action individually. See
9 supra Findings of Fact Nos. 12-20. Nicholson's membership in Log
10 Cabin Republicans has been uninterrupted and continuous since April
11 28, 2006 to the present.
12 10. Nicholson satisfies all three of the requirements for constitutional
13 standing, i.e., "injury in fact" caused by the defendants (his discharge
14 by Defendants pursuant to the Policy), which is redressable by the relief
15 sought in this lawsuit, as he testified he would rejoin the Army if the
16 policy was no longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.)
17 11. Even if the Court looks to the date the original Complaint was filed as
18 the relevant one for standing purposes, however, Plaintiff still satisfies
19 the associational standing requirements, as Plaintiff proved by a
20 preponderance of the evidence at trial that John Doe was a member in
21 good standing as of October 12, 2004. See supra Findings of Fact
22 Nos. 12-22.
23 12. John Doe has established the three elements of constitutional standing:
24 he faces a concrete injury caused by Defendants – discharge from the
25 Army Reserve – which is likely, not speculative, in nature, given the
26 mandatory language of the Don't Ask, Don't Tell Act, see 10 U.S.C. §
27
28
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1 654(b)(2), and which would be redressed by a favorable by the Court in

2 this action.
3 13. A plaintiff who has established standing must retain his or her "personal
4 stake" in the litigation throughout the proceedings. See Lewis v. Cont'l
5 Bank Corp., 494 U.S. 472, 477-78 (1990); Williams v. Boeing Co., 517
6 F.3d 1120, 1128 (9th Cir. 2008). When a plaintiff loses that "personal
7 stake" in the lawsuit, a court loses the ability to grant relief and must
8 dismiss the action on the basis of mootness because the plaintiff no
9 longer satisfies the redressability element of constitutional standing.
10 See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 68-72
11 (1997) (mootness); Williams, 517 F.3d at 1128 (redressability).
12 14. The cases cited above addressing loss of standing do not arise in an
13 associational standing context, however. Whether one regards Plaintiff
14 Log Cabin Republicans or John Doe as the party whose standing is at
15 issue, neither lost a "personal stake" in the litigation when Doe's annual
16 period of membership lapsed.
17 15. After the year covered by the initial payment of membership dues, Doe
18 still served in the Army Reserve and still was subject to discharge
19 under the Don't Ask, Don't Tell Act. Thus, he still had a personal stake
20 in the outcome of the case, and his injury – his susceptibility to
21 discharge under the Act – continued to be redressable by favorable
22 resolution of the lawsuit.
23 16. Nor has standing been lost in this case because of a change in
24 circumstances rendering the subject matter of the action moot. The Act
25 has not been repealed and the challenged policy is still in effect; Doe is
26
27
28
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1 still serving and subject to discharge under it;29 Nicholson already has
2 been discharged under it and cannot re-enlist as he wishes to do.
3 Finally, the dispute over the constitutionality of the Act has not been
4 resolved.
5 17. Likewise, the redressability aspect of constitutional standing remains
6 alive despite the lapse in Doe's dues-paying membership status. Doe's
7 imminent injury – the mandatory nature of his discharge under the
8 policy – would be addressed through a favorable ruling in this action.
9 18. Even if Defendants were correct that Log Cabin Republicans failed to
10 prove standing through Doe based on the lack of evidence he paid
11 dues after 2005, it does not follow that Plaintiff could not maintain its
12 claims. Plaintiff had standing to file suit based on the undisputed
13 evidence of Doe's membership as of October 12, 2004, the date Log
14 Cabin Republicans filed this action. (See supra Findings of Fact No. 7.)
15 19. Assuming Doe's membership lapsed a year later, in early September
16 2005, Plaintiff lacked standing temporarily from that time until April 28,
17 2006, when Nicholson became a member of Log Cabin Republicans.
18 Courts have recognized that a plaintiff who possesses standing when it
19 brings suit, later loses it, and then regains standing before entry of
20 judgment, may still maintain its claims. See, e.g., Schreiber Foods, Inc.
21 v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005) (finding
22 plaintiff that owned patent at outset of litigation, assigned it to
23 subsidiary, then reacquired it before judgment may maintain an
24 infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64,
25 70, 73 (2005).
26
29
27 In fact, Plaintiff agreed to Defendants' request for a stay of this case if
Defendants would suspend discharges under the Policy, but Defendants
28 refused to do so.
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1 20. Thus, assuming that Log Cabin Republicans lacked standing at some
2 point between early September 2005 and April 28, 2006, it still may
3 maintain its claims now.
4 21. Defendants' suggestion that LCR "manufactured" its standing for
5 purposes of this lawsuit lacks merit. (See Doc. No. 188 [Defs.'
6 Proposed Findings of Fact & Conclusions of Law] at 3.) The only
7 authority Defendants cite on this point is Washington Legal Foundation
8 v. Leavitt, 477 F. Supp. 2d 202, 211 (D.D.C. 2007), holding the
9 manufacture of standing "weakens" an association's ability to maintain
10 a lawsuit on behalf of its members.
11 22. Washington Legal Foundation was based on facts not present in the
12 record here, however. As that court explained, the Washington Legal
13 Foundation's board of directors explicitly decided to bring suit, and then
14 set about to find and recruit persons who would confer standing on it.
15 By contrast, the initiative for filing the present action came from the rank
16 and file of the LCR membership. See supra Findings of Fact No. 22.
17 23. Washington Legal Foundation is not binding authority on this Court, but
18 to the extent it provides guidance, it only holds that "manufacture" of
19 standing weakens but does not destroy an association's ability to
20 maintain its suit. Furthermore, there is no evidence here that LCR
21 manufactured standing, so Washington Legal Foundation is factually
22 dissimilar as well.
23
24 Evidence Considered by the Court
25 Plaintiff's Burden on a Facial Challenge
26 24. In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court
27 held a plaintiff challenging the validity of a law on its face must establish
28
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1 that "no set of circumstances exists under which the Act would be
2 valid." Id. at 745. The defendants in Salerno were detained pending
3 trial under the provisions of the Bail Reform Act; they challenged the
4 Act, on its face, claiming it unconstitutionally violated the Fifth and
5 Eighth Amendments.
6 25. More recently, in Washington State Grange v. Washington State
7 Republican Party, 552 U.S. 442 (2008), the Supreme Court noted the
8 criticisms leveled at the Salerno standard and recognized an alternative
9 the test as follows: "a facial challenge must fail where the statute has a
10 'plainly legitimate sweep.'" Id. at 449 (citing Washington v. Glucksberg,
11 521 U.S. 702, 739-740 & n.7 (1997) (Stevens, J., concurring)); see also
12 United States v. Stevens, 559 U.S. ___, ___, 130 S. Ct. 1577, 1587
13 (2010) (citing Glucksberg and noting the existence of two standards for
14 facial challenges outside the First Amendment context).
15 26. The Court considers the evidence presented at trial in this facial
16 challenge not for the purpose of considering any particular application
17 of the Don't Ask, Don't Tell Act, but rather for the permissible purposes
18 described in Conclusions of Law No.36-41, infra.
19 27. Plaintiff's evidence, as described above, amply illustrates that the Act
20 does not have a "plainly legitimate sweep." Rather, Plaintiff has proven
21 that the Act captures within its overreaching grasp such activities as
22 private correspondence between servicemembers and their family
23 members and friends, and conversations between servicemembers
24 about their daily off-duty activities. (See supra Findings of Fact Nos.
25 27, 28, 75, 93, 96-99, 113.)
26
27
28
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1 28. Plaintiff also has proven that the Act prevents servicemembers from
2 reporting violations of military ethical and conduct codes, even in
3 outrageous instances, for fear of retaliatory discharge. All of these
4 examples, as well as others contained in the evidence described
5 above, reveal that Plaintiff has met its burden of showing that the Act
6 does not have a "plainly legitimate sweep." (See supra Findings of
7 Fact Nos. 53, 76, 92, 112.)
8 29. Defendants rely on Salerno and its progeny, particularly Cook v. Gates,
9 528 F.3d 42 (1st Cir. 2008), in urging the Court to reject Log Cabin's
10 facial challenge. (Defs.' Mem. Cont. Fact & Law at 5; Trial Tr. 1670:14-
11 21-1671:23, 1684:12-14, July 23, 2010.) This reliance is misplaced.
12 30. In Cook, the First Circuit reasoned a facial challenge the Don't Ask,
13 Don't Tell Act failed because Lawrence "made abundantly clear that
14 there are many types of sexual activity that are beyond the reach of that
15 opinion," and "the Act includes such other types of sexual activity"
16 because it "provides for the [discharge] of a service person who
17 engages in a public homosexual act or who coerces another person to
18 engage in a homosexual act." 528 F.3d at 56 (citing Lawrence, 539
19 U.S. at 578).
20 31. The Court is not bound by this out-of-Circuit authority, and furthermore
21 finds the logic of Cook unpersuasive. First, Cook employed the
22 formulation from Salerno rather than the Supreme Court's more recent
23 articulation of the test for facial challenges set forth in Washington State
24 Grange. Moreover, the examples the Cook court cited as grounds for
25 discharge "under the Act" actually are bases for discharge of any
26 servicemember, whether the conduct in question is homosexual or
27 heterosexual. In fact, the Cook decision provides no citation to any
28
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1 provision of the Don't Ask, Don't Tell Act specifically listing either of its
2 examples as grounds for discharge under that legislation.
3
4 Evidence Properly Considered on a Facial Challenge
5 32. The Court finds meritless Defendants' contention that because Plaintiff
6 challenges the constitutionality of the statute on its face, rather than
7 challenging its application, the only evidence the Court should – indeed
8 may – consider, is the statute itself and the bare legislative history.
9 33. In United States v. O'Brien, 391 U.S. 367 (1968), the government
10 charged and convicted the defendant for burning his draft card; the
11 defendant contended the law under which he was prosecuted was
12 unconstitutional because Congress enacted it for the unlawful purpose
13 of suppressing speech. Id. at 383. The Supreme Court rejected this
14 argument, holding "under settled principles the purpose of Congress,
15 as O'Brien uses that term, is not a basis for declaring this legislation
16 unconstitutional. It is a familiar principle of constitutional law that this
17 Court will not strike down an otherwise constitutional statute on the
18 basis of an alleged illicit legislative motive." Id.
19 34. In part, the O'Brien Court founded its reasoning on the difficulty of
20 discerning a unified legislative "motive" underlying any given
21 enactment: "What motivates one legislator to make a speech about a
22 statute is not necessarily what motivates scores of others to enact it . . .
23 ." Id. at 384. Thus, O'Brien instructs that when "a statute . . . is, under
24 well-settled criteria, constitutional on its face," a court should not void
25 the law based on statements by individual legislators. Id. Thus, while
26 examining the legislative record, the Court must not pay heed to any
27 illegitimate motivations on the part of the enacting lawmakers.
28
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1 35. O'Brien does not stand for the proposition urged by Defendants,
2 however, that when deciding whether a challenged law "is, under well-
3 settled criteria, constitutional on its face," this Court should limit itself to
4 examining only the statute's legislative history. In fact, in the O'Brien
5 decision the Supreme Court specifically pointed to two cases, Grosjean
6 v. American Press Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot,
7 364 U.S. 339 (1960), noting that they "stand, not for the proposition that
8 legislative motive is a proper basis for declaring a statute
9 unconstitutional, but that the inevitable effect of a statute on its face
10 may render it unconstitutional." O'Brien, 391 U.S. at 394 (emphasis
11 added).
12 36. In both Grosjean and Gomillion, the Court noted, the purpose of the law
13 was irrelevant "because [of] the inevitable effect – the necessary scope
14 and operation." Id. at 385 (citations omitted).
15 37. Therefore, under O'Brien, Grosjean, and Gomillion, the court may admit
16 and examine evidence to determine the "scope and operation" of a
17 challenged statute; nothing in any of these authorities limits the Court's
18 discretion to consider evidence beyond the legislative history.
19 38. Defendants rely in vain on City of Las Vegas v. Foley, 747 F.2d 1294
20 (9th Cir. 1984), as support for their position regarding the inadmissibility
21 of Plaintiff's evidence. Foley arose out of a discovery dispute in a facial
22 constitutional challenge to a Las Vegas zoning ordinance restricting the
23 location of "sexually oriented businesses." Id. at 1296. One of the
24 affected businesses sought to depose city officials regarding their
25 motives in enacting the ordinance; after the city failed in its efforts to
26 obtain a protective order from the District Court, it sought mandamus
27 relief from the Ninth Circuit Court of Appeals. Id.
28
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1 39. The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged
2 illicit legislative motive," and relying on O'Brien, granted the writ,
3 directing the district court to issue a protective order. Id. at 1299. In
4 rejecting the arguments of the party seeking to depose the legislators,
5 the Foley court described the following types of evidence appropriately
6 considered by a court asked to determine a First Amendment
7 challenge: "objective indicators as taken from the face of the statute,
8 the effect of the statute, comparison to prior law, facts surrounding
9 enactment of the statute, the stated purpose, and the record of the
10 proceedings." Foley, 747 F.2d at 1297 (citations omitted).
11 40. The Ninth Circuit also noted in Foley that "basic analysis under the First
12 Amendment . . . has not turned on the motives of the legislators, but on
13 the effect of the regulation." Id. at 1298 (emphasis added).
14 41. Defendants correctly point out that the authorities discussed above hold
15 that isolated (and in this case, sometimes inflammatory) statements of
16 Senators and House members during the Don't Ask, Don't Tell Act
17 legislative hearings should not be considered by the Court.
18 42. Nevertheless, this does not affect, much less eviscerate, the language
19 in the authorities cited above that Defendants would have the Court
20 ignore, holding that a court deciding a facial challenge can and should
21 consider evidence beyond the legislative history, including evidence
22 regarding the effect of the challenged statute.
23 43. As this case includes a facial challenge on substantive due process as
24 well as First Amendment grounds, the Court notes that although the
25 authorities discussed above dealt with evidence properly considered by
26 courts in resolving First Amendment facial challenges, their holdings
27 regarding the admissibility of broad categories of testimonial and
28
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1 documentary evidence are echoed in the authorities considering facial

2 challenges on due process grounds. See, e.g., Lawrence v. Texas,
3 539 U.S. 558 (2003); Reno v. Flores, 507 U.S. 292, 309 (1993); Tucson
4 Woman's Clinic v. Eden, 379 F.3d 531, 556-57. (9th Cir. 2004); Los
5 Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 707 (9th Cir. 1992); see
6 generally, Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009).
7 44. In Lawrence, petitioners pled nolo contendere to charges under a
8 Texas statute forbidding certain sexual acts between persons of the
9 same sex. They then raised a facial challenge to the statute's
10 constitutionality under the Due Process and Equal Protection clauses of
11 the Fourteenth Amendment. In reaching its decision that the Texas
12 statute indeed was unconstitutional, the Supreme Court's majority
13 reviewed at length the history of the common law prohibiting sodomy or
14 regulating homosexuality, the effect of the statute ("The stigma this
15 criminal statute imposes, moreover, is not trivial . . . . We are advised
16 that if Texas convicted an adult for private consensual homosexual
17 conduct under the statute here in question the convicted person would
18 come within the registration laws of at least four States were he or she
19 to be subject to their jurisdiction. . . ."), facts surrounding enactment of
20 the statute, and comparison with other laws. Lawrence, 539 U.S. at
21 567-79.
22 45. Accordingly, the Court's determination of Plaintiff's substantive due
23 process and First Amendment challenges to the Act refers to evidence
24 properly adduced by Log Cabin Republicans and admitted at trial. (As
25 noted above, apart from the Act itself and its legislative history,
26 Defendants admitted no evidence and produced no witnesses.)
27
28
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1 Plaintiff's Challenge under the Due Process Clause

2 46. Plaintiff claims the Don't Ask, Don't Tell Act violates its members'
3 substantive due process rights, identified in Lawrence as rights
4 associated with the "autonomy of self that includes freedom of thought,
5 belief, expression, and certain intimate conduct." Lawrence, 539 U.S.
6 at 562. (FAC ¶¶ 4, 38-43; Doc. No. 190 [Pl.'s Mem. Cont. Fact & Law]
7 at 32-33.)
8
9 The Standard of Review
10 47. As set out more fully in the July 6, 2010, Order, courts employ a
11 heightened standard of review when considering challenges to state
12 actions implicating fundamental rights. (July 6, 2010, Order at 6-9.)
13 48. After the United States Supreme Court's decision in Lawrence v. Texas,
14 recognizing the fundamental right to "an autonomy of self that includes
15 freedom of thought, belief, expression, and certain intimate conduct,"
16 539 U.S. at 562, the Ninth Circuit in Witt v. Department of Air Force,
17 527 F.3d 806 (9th Cir. 2008), held the Don't Ask, Don't Tell Act
18 constitutes an intrusion "upon the personal and private lives of
19 homosexuals, in a manner that implicates the rights identified in
20 Lawrence, and is subject to heightened scrutiny." 527 F.3d at 819.
21 49. Thus, in order for the Don't Ask, Don't Tell Act to survive Plaintiff's
22 constitutional challenge, it must "[1] advance an important
23 governmental interest, [2] the intrusion must significantly further that
24 interest, and [3] the intrusion must be necessary to further that interest."
25 Id.
26 50. Noting the Act "concerns the management of the military, and judicial
27 deference to . . . congressional exercise of authority is at its apogee" in
28
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1 this context, Witt went on to decide the Act advances an "important

2 governmental interest." 527 F.3d at 821 (citations omitted).
3 Accordingly, the Court addresses the second and third prongs of the
4 Witt test.
5
6 The Act Does Not Significantly Further the Government's Interests in
7 Military Readiness or Unit Cohesion
8 51. Defendants relied solely on the legislative history of the Act and the Act
9 itself in support of their position that the Act passes constitutional
10 muster. (See Findings of Fact Nos. 127-34; Defs.' Mem. Cont. Fact &
11 Law at 9-10.) Careful review and consideration of the Act itself and its
12 legislative history reveals that this evidence fails to satisfy Defendants'
13 burden of proving that the Act, with its attendant infringements on the
14 fundamental rights of Plaintiff's members, significantly furthers the
15 Government's interest in military readiness or unit cohesion.
16 52. Plaintiff's evidence at trial demonstrated the Act does not significantly
17 advance the Government's interests in military readiness or unit
18 cohesion. The testimony of former servicemembers provides ample
19 evidence of the Act's adverse effect on the fundamental rights of
20 homosexual members of the United States military. Their testimony
21 also demonstrated that the Act has a deleterious effect on the
22 Government's interests in maintaining military readiness and unit
23 cohesion. In addition to the testimony from the lay witnesses, Plaintiff's
24 other evidence, including documentary evidence and testimony from
25 witnesses in such specialties as national security policy, military
26 sociology, military history, and social psychology, provided additional
27
28
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1 support for this conclusion that the Act harms, rather than furthers, the
2 Government's important interests.
3
4 The Act Is Not Necessary to Further the Government's Interests in
5 Military Readiness and Unit Cohesion
6 53. The Witt court held that to justify the infringement on the fundamental
7 rights identified in Lawrence, a defendant must satisfy both the
8 requirement that the Act "significantly furthers" the Government's
9 interests and the requirement that it is "necessary" to achieve them. To
10 the extent that Defendants have made a distinct argument here that the
11 Act is necessary to achieve the Government's significant interests, they
12 have not met their burden as to this prong of the Witt test, either.
13 54. In order to justify the encroachment on the fundamental rights
14 described above, Defendants faced the burden at trial of showing the
15 Don't Ask, Don't Tell Act was necessary to significantly further the
16 Government's important interests in military readiness and unit
17 cohesion. Defendants failed to meet that burden.
18 55. Thus, Plaintiff is entitled to judgment in its favor on the first claim in its
19 First Amended Complaint for violation of the substantive due process
20 rights guaranteed under the Fifth Amendment.
21
22 Plaintiff's First Amendment Challenge to the Act
23 56. "Congress shall make no law . . . abridging the freedom of speech, . . .
24 or the right of the people peaceably to assemble, and to petition the
25 Government for a redress of grievances." (U.S. Const. amend. I.)
26
27
28
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1 57. Plaintiff claims that the Don't Ask, Don't Tell Act violates its members'
2 First Amendment rights to these freedoms. (FAC ¶¶ 1, 6, 45-49; Pl.'s
3 Mem. Cont. Fact & Law at 32-33.)
4
5 The Standard of Review in First Amendment Challenges
6 58. Plaintiff challenges the Act as overbroad and as an unconstitutional
7 restriction on speech based on its content. (FAC ¶ 47; Pl.'s Mem. Cont.
8 Fact & Law at 35, 40.) Laws regulating speech based on its content
9 generally must withstand intense scrutiny when facing a First
10 Amendment challenge:
11 At the heart of the First Amendment lies the principle that
each person should decide for himself or herself the ideas and
12 beliefs deserving of expression, consideration, and
adherence. Our political system and cultural life rest upon this
13 ideal. Government action that stifles speech on account of its
message, or that requires the utterance of a particular
14 message favored by the Government, contravenes this
essential right. Laws of this sort pose the inherent risk that
15 the Government seeks not to advance a legitimate regulatory
goal, but to suppress unpopular ideas or information or
16 manipulate the public debate through coercion rather than
persuasion. These restrictions rais[e] the specter that the
17 Government may effectively drive certain ideas or viewpoints
from the marketplace. For these reasons, the First
18 Amendment, subject only to narrow and well-understood
exceptions, does not countenance governmental control over
19 the content of messages expressed by private individuals.
Our precedents thus apply the most exacting scrutiny to
20 regulations that suppress, disadvantage, or impose differential
burdens upon speech because of its content.
21 Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994) (emphasis
22 added) (citations omitted).
23 59. In Simon & Schuster, Inc. v. Members of New York State Crime Victims
24 Board, 502 U.S. 105 (1991), the Supreme Court considered whether
25 New York's "Son of Sam" law purporting to strip authors of profits
26 gained from books or other publications depicting their own criminal
27 activities constituted content-based regulation. Holding the law was not
28
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1 content neutral, the Court ruled that "[i]n order to justify such differential
2 treatment, 'the State must show that its regulation is necessary to serve
3 a compelling state interest and is narrowly drawn to achieve that end.'"
4 Id. at 118 (citing Arkansas Writers' Project, Inc. v. Ragland, 481 U.S.
5 221, 231 (1987)).
6 60. "Deciding whether a particular regulation is content-based or content-
7 neutral is not always a simple task. We have said that the principal
8 inquiry in determining content-neutrality . . . is whether the government
9 has adopted a regulation of speech because of [agreement or]
10 disagreement with the message it conveys." Turner, 512 U.S. at 642
11 (citations omitted).
12 61. The Supreme Court in Turner distilled the rule as follows: a law that by
13 its terms "distinguish[es] favored speech from disfavored speech on the
14 basis of the ideas or views expressed [is] content-based." Id. at 643
15 (citing Burson v. Freeman, 504 U.S. 191, 197 (1992); Boos v. Barry,
16 485 U.S. 312, 318-19 (1988)).
17 62. Defendants did not address directly the question of content neutrality,
18 but relied instead on authorities that, for various reasons, fail to counter
19 the clear weight of the case law discussed above. Defendants
20 repeatedly cited the Ninth Circuit's decisions in Witt v. Department of
21 Air Force, 527 F.3d 806 (9th Cir. 2008), Philips v. Perry, 106 F.3d 1420
22 (9th Cir. 1997), and Holmes v. California National Guard, 124 F.3d
23 1126 (9th Cir. 1997), although the plaintiff in Witt brought no First
24 Amendment claim and the Court in Philips expressly declined to reach
25 the First Amendment issue, noting the district court also had stopped
26 short of resolving it.
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1 63. In Holmes, the Ninth Circuit disposed of the plaintiffs' free speech
2 claims in summary manner, holding because the plaintiffs "were
3 discharged for their conduct and not for speech, the First Amendment is
4 not implicated." 124 F.3d at 1136 (citations omitted).
5 64. Holmes relied on the Fourth Circuit's decision in Thomasson v. Perry,
6 80 F.3d 915 (4th Cir. 1996), which rejected a First Amendment
7 challenge to the Don't Ask, Don't Tell Act on the basis that it
8 "permissibly uses the speech as evidence," and "[t]he use of speech as
9 evidence in this manner does not raise a constitutional issue – the First
10 Amendment does not prohibit the evidentiary use of speech to establish
11 the elements of a crime, or, as is the case here, to prove motive or
12 intent." Id. at 931 (citations omitted).
13 65. Holmes also relied on Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991),
14 although acknowledging that decision was based not on the Don't Ask,
15 Don't Tell Act but a superseded policy. See Holmes, 124 F.3d at 1136
16 (citing Pruitt, 963 F.2d at 1164). In other words, Holmes and the cases
17 from other circuits have found the Don't Ask, Don't Tell Act does not
18 raise a First Amendment issue to be analyzed under a content-neutral
19 versus content-based framework.
20 66. None of these authorities, however, considered whether there might be
21 any speech, other than admissions of homosexuality subject to being
22 used as evidence in discharge proceedings, affected by the Act.
23 Furthermore, Holmes was decided before Lawrence and was
24 "necessarily rooted" in Bowers v. Hardwick, 478 U.S. 186 (1986), which
25 Lawrence overruled. See Holmes, 124 F.3d at 1137 (Reinhardt, J.,
26 dissenting).
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1 67. Lawrence struck down a Texas statute making felonious certain sexual
2 acts between two persons of the same sex; the Supreme Court held in
3 part that the Constitution recognized certain substantive due process
4 rights, associated with the "autonomy of self that includes freedom of
5 thought, belief, expression, and certain intimate conduct." Lawrence,
6 539 U.S. at 562 (emphasis added).
7 68. The Holmes decision, finding the Act did not implicate the First
8 Amendment, and the Act's provisions, appear at odds with the Supreme
9 Court's decision in Lawrence. As Holmes explains:
10 "Homosexual conduct is grounds for separation from the Military
11 Services under the terms set forth [in the DOD Directives.]
12 Homosexual conduct includes homosexual acts, a statement by a
13 member that demonstrates a propensity or intent to engage in
14 homosexual acts, or a homosexual marriage or attempted marriage. A
15 statement by a member that demonstrates a propensity or intent to
16 engage in homosexual acts is grounds for separation not because it
17 reflects the member's sexual orientation, but because the statement
18 indicates a likelihood that the member engages in or will engage in
19 homosexual acts." 124 F.3d at 1129 (quoting DOD Directive 1332.30
20 at 2-1(c) (emphasis added)).
21 69. The Holmes court found the Act does not punish status, despite the
22 presumption embodied within it that declared homosexual
23 servicemembers will engage in proscribed homosexual conduct, finding
24 the assumption was "imperfect" but "sufficiently rational to survive
25 scrutiny . . . ." 124 F.3d at 1135.
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1 70. Thus, Holmes's foundations – rational basis scrutiny, acceptance of an

2 assumption of sexual misconduct based on admitted homosexual
3 orientation, and the Bowers decision – all have been undermined by
4 Lawrence, particularly in light of its explicit protection of "expression."
5 See Lawrence, 539 U.S. at 562.
6 71. Furthermore, if the proscription in subsection (b)(1) of the Act violates
7 substantive due process as set forth above, then the limitation on
8 speech in subsection (b)(2) necessarily fails as well. "Plainly, a
9 limitation on speech in support of an unconstitutional objective cannot
10 be sustained." Able v. United States, 88 F.3d 1280, 1300 (2d Cir.
11 1996). Holmes, decided before Lawrence, therefore does not shield
12 Defendants from Plaintiff's First Amendment claim.
13 72. The Act in subsection (b)(2) requires a servicemember's discharge if he
14 or she "has stated that he or she is a homosexual or bisexual, or words
15 to that effect . . . ." 10 U.S.C. § 654 (b)(2) (emphasis added). The Act
16 does not prohibit servicemembers from discussing their sexuality in
17 general, nor does it prohibit all servicemembers from disclosing their
18 sexual orientation. Heterosexual members are free to state their sexual
19 orientation, "or words to that effect," while gay and lesbian members of
20 the military are not.
21 73. Thus, on its face, the Act discriminates based on the content of the
22 speech being regulated. It distinguishes between speech regarding
23 sexual orientation, and inevitably, family relationships and daily
24 activities, by and about gay and lesbian servicemembers, which is
25 banned, and speech on those subjects by and about heterosexual
26 servicemembers, which is permitted.
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1 74. The First Amendment's hostility to content-based regulation "extends

2 not only to restrictions on particular viewpoints, but also to prohibition of
3 public discussion of an entire topic. As a general matter, 'the First
4 Amendment means that government has no power to restrict
5 expression because of its message, its ideas, its subject matter, or its
6 content.'" Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y.,
7 447 U.S. 530, 537 (1980) (quoting Police Dep't of Chicago v. Mosley,
8 408 U.S. 92, 95 (1972)).
9 75. In evaluating the constitutionality of such regulations in a military
10 context, however, courts traditionally do not apply the strict scrutiny
11 described above. Rather, courts apply a more deferential level of
12 review of military restrictions on speech. "Our review of military
13 regulations challenged on First Amendment grounds is far more
14 deferential than constitutional review of similar laws or regulations
15 designed for civilian society. The military need not encourage debate
16 or tolerate protest to the extent that such tolerance is required of the
17 civilian state by the First Amendment; to accomplish its mission the
18 military must foster instinctive obedience, unity, commitment, and esprit
19 de corps." Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations
20 omitted).
21 76. Although careful to point out that the "subordination of the desires and
22 interests of the individual to the needs of the service," which is "the
23 essence of military life," does not entirely abrogate the guarantees of
24 the First Amendment, the Supreme Court emphasized the "great
25 deference [courts must afford] to the professional judgment of military
26 authorities concerning the relative importance of a particular military
27 interest." Id. (citations omitted).
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1 77. The Goldman decision relied in part on Rostker v. Goldberg, 453 U.S.
2 57 (1981), oft-cited for the principle that "judicial deference . . . is at its
3 apogee when legislative action under the congressional authority to
4 raise and support armies and make rules and regulations for their
5 governance is challenged." Id. at 70.
6 78. In keeping with this well-established rule of deference, regulations of
7 speech in a military context will survive Constitutional scrutiny if they
8 "restrict speech no more than is reasonably necessary to protect the
9 substantial government interest." Brown v. Glines, 444 U.S. 348, 348,
10 355 (1980) (citing Greer v. Spock, 424 U.S. 828 (1976); Procunier v.
11 Martinez, 416 U.S. 396 (1974)).
12 79. The Don't Ask, Don't Tell Act fails this test of constitutional validity.
13 Unlike the regulations on speech upheld in Brown and Spock, for
14 example, the sweeping reach of the restrictions on speech in the Don't
15 Ask, Don't Tell Act is far broader than is reasonably necessary to
16 protect the substantial government interest at stake here.
17 80. In Brown, the Supreme Court upheld an Air Force regulation that
18 required Air Force personnel first to obtain permission from the base
19 commander before distributing or posting petitions on Air Force bases,
20 444 U.S. at 348; in Greer, the Court upheld a similar regulation on Army
21 bases, banning speeches, demonstrations, and distribution of literature,
22 without prior approval from post headquarters. 424 U.S. at 828.
23 81. In both cases, the Court rejected facial challenges to the regulations,
24 holding they protected substantial Governmental interests unrelated to
25 the suppression of free expression, i.e., maintaining the respect for duty
26 and discipline, and restricted speech no more than was reasonably
27 necessary to protect that interest.
28
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1 82. By contrast to the relatively narrow regulations at issue in Brown and

2 Greer, however, the Don't Ask, Don't Tell Act encompasses a vast
3 range of speech, far greater than necessary to protect the
4 Government's substantial interests. See supra Findings of Fact Nos.
5 27, 28, 53, 75, 76, 92, 93, 96-99, 112,113.)
6 83. For these reasons, Plaintiff is also entitled to judgment on its claim for
7 violation of the First Amendment's guarantees of freedom of speech
8 and petition.
9
10
11
12 Dated: October 12, 2010
VIRGINIA A. PHILLIPS
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1 DAN WOODS (State Bar No. 78638)

EARLE MILLER (State Bar No. 116864)
2 AARON A. KAHN (State Bar No. 238505)
3 WHITE & CASE LLP
4 Los Angeles, CA 90071-2007
Telephone: (213) 620-7700
5 Facsimile: (213) 452-2329
6 E-mail: dwoods@whitecase.com
E-mail: emiller@whitecase.com
7 E-mail: aakahn@whitecase.com
8 Attorneys for Plaintiff
9
10
13
14
LOG CABIN REPUBLICANS, a non- Case No. CV 04-8425-VAP (Ex)
15
profit corporation,
16
Plaintiff, OPPOSITION OF LOG CABIN
17 REPUBLICANS TO DEFENDANTS’
EX PARTE APPLICATION FOR
18 v. EMERGENCY STAY OF
INJUNCTION
19
UNITED STATES OF AMERICA and Judge: Hon. Virginia A. Phillips
20 ROBERT M. GATES, SECRETARY
OF DEFENSE, in his official capacity, Hearing: October 18, 2010
21
Time: 2:30 p.m.
22
Defendants. Ctrm: 2
23
24
25
26
27
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OPPOSITION TO EX PARTE APPLICATION
LOSANGELES 882425 (2K) FOR EMERGENCY STAY OF INJUNCTION
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1 TABLE OF CONTENTS
2
I. INTRODUCTION .......................................................................................... 1
3
II. DEFENDANTS DO NOT MEET THE STANDARDS FOR A STAY
4 UNDER RULE 62(c) ...................................................................................... 2
5
A. Defendants Are Not Likely to Succeed on the Merits. .................... 3
6
B. Defendants Will Not Be Irreparably Injured Absent a Stay.......... 5
7
C. Issuance of a Stay Will Substantially Injure Log Cabin’s
8
Members, and All Homosexual Servicemembers, by
9 Perpetuating the Denial of Their Constitutional Rights................. 7
10 D. The Public Interest Favors Denial of a Stay of the Injunction. ..... 8
11
III. THE GOVERNMENT’S CLAIMED HARDSHIP IS A RED HERRING10
12
IV. CONCLUSION ............................................................................................. 12
13
14
15
16
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18
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20
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1 TABLE OF AUTHORITIES
2
Page(s)
3
4
FEDERAL CASES
5
Able v. United States,
6 155 F.3d 628 (2d Cir. 1998) ................................................................................. 4
7 Alliance for the Wild Rockies v. Cottrell,
___ F.3d ___, No. 09-35756, 2010 WL 3665149 (9th Cir. Sept. 22, 2010) ........ 3
8
Bowen v. Kendrick,
9 483 U.S. 1304, 97 L. Ed. 2d 787, 108 S. Ct. 1 (1987)
(Rehnquist, J., in chambers) ............................................................................... 10
10
Coalition for Econ. Equity v. Wilson,
11 122 F.3d 718 (9th Cir. 1997) .............................................................................. 10
12 Cook v. Gates,
528 F.3d 42 (1st Cir. 2008) .................................................................................. 4
13
Elrod v. Burns,
14 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) ....................................... 7
15 Gay Lesbian Bisexual Alliance v. Sessions,
917 F. Supp. 1558 (M.D. Ala. 1996).................................................................... 3
16
Golden Gate Rest. Ass’n v. City and County of San Francisco,
17 512 F.3d 1112 (9th Cir. 2008) .....................................................................passim
18 Hilton v. Braunskill,
481 U.S. 770, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987) ..................................... 2
19
Lawrence v. Texas,
20 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003) ................................... 4
21 Lopez v. Heckler,
713 F.2d 1432 (9th Cir. 1983) .............................................................................. 3
22
Nelson v. Nat’l Aeronautics & Space Admin. (Nelson II),
23 530 F.3d 865 (9th Cir. 2008), cert. granted on other grounds, ___
U.S. ___, 176 L. Ed. 2d 211, 130 S. Ct. 1755 (March 8, 2010)................... 5, 6, 7
24
New Motor Vehicle Bd. v. Orrin W. Fox Co.,
25 434 U.S. 1345, 54 L. Ed. 2d 349, 98 S. Ct. 359 (1977)
(Rehnquist, J., in chambers) ................................................................................. 9
26
Philips v. Perry,
27 106 F.3d 1420 (9th Cir. 1997) .............................................................................. 4
28
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1 Richenberg v. Perry,
97 F.3d 256 (8th Cir. 1996) .................................................................................. 4
2
Thomasson v. Perry,
3 80 F.3d 915 (4th Cir. 1996) (en banc).................................................................. 4
4 Tucker v. City of Fairfield,
398 F.3d 457 (6th Cir. 2005) ................................................................................ 7
5
Weiss v. United States,
6 510 U.S. 163, 127 L. Ed. 2d 1, 114 S. Ct. 752 (1994) ......................................... 9
7 Winston-Salem/Forsyth County Bd. of Educ. v. Scott,
404 U.S. 1221, 31 L. Ed. 2d 441, 92 S. Ct. 1236 (1971) ..................................... 2
8
Winter v. Natural Resources Defense Council,
9 ___ U.S. ___, 172 L. Ed. 2d 249, 129 S. Ct. 365 (2008) ................................. 2, 3
10 Witt v. Department of the Air Force,
527 F.3d 806 (9th Cir. 2008) .......................................................................... 4, 10
11
12
FEDERAL CONSTITUTION
13
Fourteenth Amendment ........................................................................................... 10
14
First Amendment ................................................................................................... 7, 9
15
16
FEDERAL RULES
17
Rule 62(c) .................................................................................................................. 2
18
19
20
21
22
23
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1 I.
2 INTRODUCTION
3 This is at least the government’s fifth request for a stay in this case, following
4 the stay it requested in its Objections to plaintiff’s proposed judgment (Doc. 235)
5 and the three prior requests identified in plaintiff’s Response to those Objections
6 (Doc. 236). See Minute Order of October 12, 2010 (Doc. 249), at 13-14. The
7 government does not even discuss, let alone call into question, any of the reasons
8 for the injunction that were set forth in that Minute Order or in the Court’s 85-page
9 Memorandum Opinion (Doc. 250) or its 84-page Findings of Fact and Conclusions
10 of Law (Doc. 251). Instead, it supports the request first with a belated declaration
11 from an Undersecretary of Defense ominously recounting the bureaucratic
12 nightmare that the injunction will supposedly create for his Department, and
13 second, unbelievably, with an Internet printout of an interview of President Obama
14 in Rolling Stone magazine – the rankest of hearsay and unsworn, self-serving
15 statements which the Court should disregard. Defendants make nowhere near the
16 showing required to sustain an application for a stay of injunction pending appeal.
17 The government rushes to appeal the Court’s judgment that DADT is
18 unconstitutional, even as the President states repeatedly in public pronouncements
19 that the policy weakens and undermines our national security and will “end on [his]
20 watch”.1 The government is evidently uncomfortable with the fact that it is arguing
21 that this case should not proceed to the inevitable invalidation of Don't Ask, Don't
22 1
It is not only Admiral Mullen who tweets (Trial Ex. 330). President Obama, using
his verified Twitter account, tweeted yesterday, on the very day that the
23 Government filed both its appeal to the Ninth Circuit and this emergency motion
for stay, that “Anybody who wants to serve in our armed forces and make sacrifices
24 on our behalf should be able to. DADT will end & it will end on my watch.” See
Attachment 1. And in the fuller remarks that his tweet encapsulated, the President
25 made it clear that he agrees with the principles underlying the Court’s judgment:
“we recently had a Supreme Court -- a district court case that said, ‘don’t ask, don’t
26 tell’ is unconstitutional. I agree with the basic principle that anybody who wants to
serve in our armed forces and make sacrifices on our behalf, on behalf of our
27 national security, anybody should be able to serve. And they shouldn’t have to lie
about who they are in order to serve.” See http://www.whitehouse.gov/the-press-
28 office/2010/10/14/remarks-president-a-youth-town-hall.
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1 Tell at the same time as the senior civilian and military command professes to wish
2 for the end of that policy. That discomfort is well justified. But the fact that the
3 government’s continued defense of the case bespeaks hypocrisy at its highest levels
4 should reinforce, not deter, the Court from maintaining the injunction it correctly
5 entered based on the evidence presented at trial, and thereby safeguarding the
6 Constitutional rights of our servicemembers.
7 Every day that the government remains free to implement the Don’t Ask,
8 Don’t Tell policy, American citizens’ Constitutional rights are violated. The
9 emergency stay of injunction that the government requests would perpetuate this
10 unconstitutional state of affairs with no countervailing benefit to the government
11 that outweighs the deprivation of rights such a stay would entail. The request for
12 stay must be denied.
13 II.
14 DEFENDANTS DO NOT MEET
15 THE STANDARDS FOR A STAY UNDER RULE 62(C)
16 A stay of injunction under Fed. R. Civ. P. 62(c) is considered “extraordinary
17 relief” for which the moving party bears a “heavy burden.” Winston-Salem/Forsyth
18 County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231, 31 L. Ed. 2d 441, 92 S. Ct.
19 1236 (1971). Four factors regulate the issuance of a stay of a district court order,
20 including stay of injunction, pending appeal: (1) whether the stay applicant has
21 made a strong showing that he is likely to succeed on the merits; (2) whether the
22 applicant will be irreparably injured absent a stay; (3) whether issuance of the stay
23 will substantially injure the other parties interested in the proceeding; and (4) where
24 the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724,
25 107 S. Ct. 2113 (1987). These are the same four factors that must be shown by a
26 party moving for an injunction in the first place, see Winter v. Natural Resources
27 Defense Council, ___ U.S. ___, 172 L. Ed. 2d 249, 129 S. Ct. 365, 374 (2008), and
28 analysis of the factors in the one situation informs the analysis in the other. See
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1 Golden Gate Rest. Ass’n v. City and County of San Francisco, 512 F.3d 1112,
2 1115-16 (9th Cir. 2008).
3 The moving party must show the existence of all four factors; and the moving
4 party must show not merely the “possibility” of irreparable injury absent a stay, as
5 defendants contend, but the likelihood of irreparable injury. Winter, 129 S.Ct. at
6 375 (rejecting the Ninth Circuit’s earlier “possibility” standard as articulated in,
7 e.g., Golden Gate Rest. Ass’n, 512 F.3d at 1115, and Lopez v. Heckler, 713 F.2d
8 1432, 1435 (9th Cir. 1983), cited by defendants); Alliance for the Wild Rockies v.
9 Cottrell, ___ F.3d ___, No. 09-35756, 2010 WL 3665149, at *5, 8 (9th Cir. Sept.
10 22, 2010). The government’s showing here fails all four factors.
11 A. Defendants Are Not Likely to Succeed on the Merits.
12 Defendants’ application completely fails to argue that defendants are likely
13 to succeed on the merits of their appeal, the first necessary prong of the test for a
14 stay. There is an excellent reason for that omission: defendants are not at all likely
15 to succeed on the merits, and they know it.2 Log Cabin’s evidence at trial was
16 overwhelming and showed conclusively that Don't Ask, Don't Tell does not
17 significantly further an important governmental interest, is not necessary to that
18 interest, and in fact impairs that interest. The government presented no evidence to
19 the contrary and will be restricted on appeal to the record it made – the legislative
20 history of the statute. Under the circumstances, it cannot show any likelihood of
21 success on the merits. See Gay Lesbian Bisexual Alliance v. Sessions, 917 F.
22 Supp. 1558, 1563 (M.D. Ala. 1996) (denying stay of declaration of facial
23 unconstitutionality of state statute because the state could identify no single
24 prospective application of the statute that would be constitutional).
25 A moving party that cannot make a showing of likely success on the merits
26 may substitute a showing that the appeal presents a serious legal question. See
27 Golden Gate Rest. Ass’n, 512 F.3d at 1115-16. That fallback argument is
28 2
The application’s apologetic footnote 1 acknowledges as much.
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1 apparently what the government relies on here, in the very cursory Part B of its
2 Argument at page 4 of its application. But defendants cannot show the existence of
3 a serious legal question here.
4 First of all, they do not even identify what the supposed “serious question” is.
5 Is it Log Cabin’s standing? Is it the fact that this case presented a facial challenge?
6 Is it the admission of some particular evidence? Is it the Court’s application of the
7 Witt standard? The Court and Log Cabin are left to guess.
8 For their claim that such a serious question exists, defendants again rely
9 solely, as they have throughout this case, on five previous Circuit Court cases that
10 did not invalidate DADT: Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Cook v.
11 Gates, 528 F.3d 42 (1st Cir. 2008); Able v. United States, 155 F.3d 628 (2d Cir.
12 1998); Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996); and Thomasson v. Perry,
13 80 F.3d 915 (4th Cir. 1996) (en banc). As we have pointed out more than once
14 before, all of these cases except Cook predate the Supreme Court’s decision in
15 Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), and
16 therefore, as the Court has recognized (See Minute Order of October 12, 2010
17 (Doc. 249), at 9-10), are not relevant here. As for Cook, it does not control in this
18 Circuit, where the rule of Witt v. Department of the Air Force, 527 F.3d 806 (9th
19 Cir. 2008) – a decision the government elected not to appeal –governs.3 The
20 injunction here was specifically based on Witt, and there can be no serious legal
21 question of its validity under the controlling law.
22 Moreover, following remand from the Ninth Circuit, Witt is also the only
23 other case to have gone to a full trial on the merits of DADT. That trial resulted in
24 the same finding this Court reached, that DADT was unconstitutional, in its as-
25
3
The government continues to falsely assert that Witt “rejected as inappropriate a
26 facial challenge to the statute.” Witt did not assert that a facial challenge to DADT
would be impermissible, it merely decided the case that was before it, which was an
27 as-applied challenge. 527 F.3d at 819. The standard announced in Witt is properly
applied in this facial challenge, and nothing in the Witt decision forecloses that.
28
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1 applied setting. To our knowledge, the government has not moved to stay the trial
2 court’s decision of reinstatement. These facts show further that no “serious legal
3 question,” as defined in stay jurisprudence, is presented here.
4 Finally, though the defendants’ application ignores this requirement, a
5 movant relying on the “serious legal question” alternative must show that the
6 second and third factors, collectively the balance of hardships, tips “sharply” in its
7 favor. Golden Gate Rest. Ass’n, 512 F.3d at 1115-16; Nelson v. Nat’l Aeronautics
8 & Space Admin. (Nelson II), 530 F.3d 865, 872-73 (9th Cir. 2008), cert. granted on
9 other grounds, ___U.S. ___, 176 L. Ed. 2d 211, 130 S. Ct. 1755 (March 8, 2010)
10 (No. 09-530). As shown below, the balance of hardships in this case in fact tips
11 sharply toward the plaintiff, so defendants cannot rely on the “serious legal
12 question” avenue.
13 B. Defendants Will Not Be Irreparably Injured Absent a Stay.
14 The great bulk of the defendants’ application for stay is devoted to their
15 claim that the military will be harmed if the Court’s injunction remains in place
16 while the government pursues an appeal.4 But the injunction does not require the
17 military to do anything affirmatively: it does not order the military to redesign its
18 barracks, to retool its pay scales, to re-ordain its chaplains, or any of the other
19 specters raised in the application. The Court’s injunction requires only one thing:
20 to cease investigating and discharging honorable, patriotic, brave fighting men and
21 women for reasons unrelated to their performance and military ability.
22 With the injunction in place, nothing will change with regard to the
23 composition of the military, the recruitment, training, promotion, demotion, and
24 deployment of servicemembers, the mission and operations of the armed forces, or
25 4
The application dresses the claim up in the garb of the “public interest,” a separate
and distinct prong of the required four-factor analysis, but the supposed harms
26 identified in the moving papers are all to the military’s institutional interests and its
bureaucratic needs. Though the military ultimately serves the public, its interests
27 are not the “public interest” and conflating the two, as the government’s application
attempts to do, is misleading. As discussed in Part D below, the true public interest
28 is served by ensuring that the military is held to Constitutional standards.
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1 anything else that pertains to the important governmental interest that the military
2 serves. The evidence at trial showed that homosexual men and women already
3 serve today; they are deployed to theaters of combat when needed – indeed,
4 retained overall in greater numbers when needed – even if they are openly
5 homosexual; it is their discharge, not their presence, that if anything impacts morale
6 and good order. As the Court held (Am. Memo. Opinion (Doc. 250), at 59), “[f]ar
7 from furthering the military's readiness, the discharge of these service men and
8 women had a direct and deleterious effect on this governmental interest.” The
9 evidence at trial “directly undermine[d] any contention that the Act furthers the
10 Government’s purpose of military readiness,” id. at 64; and defendants admitted –
11 in public statements of the President and the Chairman of the Joint Chiefs of Staff –
12 that “far from being necessary to further significantly the Government’s interest in
13 military readiness, the Don't Ask, Don't Tell Act actually undermines that interest.”
14 Id. at 65. Enjoining the enforcement of DADT, far from injuring defendants, will
15 actually improve morale, readiness, cohesion, and overall military effectiveness.
16 Neither should the government be heard to argue, as it does in Part D of its
17 Argument at page 12, that a stay of the injunction is necessary to preserve the status
18 quo. “Maintaining the status quo is not a talisman.” Golden Gate Rest. Ass’n, 512
19 F.3d at 1116. The focus is on prevention of injury: “[i]t often happens that this
20 purpose is furthered by preservation of the status quo, but not always. If the
21 currently existing status quo itself is causing one of the parties irreparable injury, it
22 is necessary to alter the situation so as to prevent the injury. … The focus always
23 must be on prevention of injury by a proper order, not merely on preservation of the
24 status quo.” Id., quoting Canal Auth. of Florida v. Callaway, 489 F.2d 567, 576
25 (5th Cir. 1974).
26 The supposed “injury” to the military that the government claims would
27 result from the Court’s order invalidating DADT is, by the government’s own
28 account, entirely a matter of rewriting handbooks and personnel manuals,
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1 developing training and “educational” materials, reassuring serving personnel that

2 their “views, concerns, and perspectives” are valued, and the like. These activities
3 may or may not be burdensome – and if they are, it is a burden the Constitution
4 demands – but they are not “irreparable injury” of the type that the test for a stay
5 contemplates. By contrast, the injury to Log Cabin’s members and to all American
6 servicemembers from granting a stay is truly irreparable, in a Constitutional sense,
7 as the following section shows.
8 C. Issuance of a Stay Will Substantially Injure Log Cabin’s Members,
9 and All Homosexual Servicemembers, by Perpetuating the Denial
10 of Their Constitutional Rights.
11 If the Court grants the government’s application for a stay of the injunction,
12 homosexual servicemembers will continue to be investigated and discharged. The
13 government admits as much, at page 12 of its brief (“to the extent any
14 servicemember faces discharge proceedings (or any other alleged immediate harm),
15 that can be addressed….”).5 Those investigations and discharges, as required by
16 and carried out under DADT, violate the due process and First Amendment rights
17 of the servicemembers, and deprivation of Constitutional rights is ipso facto
18 irreparable injury. “[C]onstitutional violations cannot be adequately remedied
19 through damages and therefore generally constitute irreparable harm.” Nelson II,
20 530 F.3d at 882; see also Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S.
21 Ct. 2673 (1976) (“The loss of First Amendment freedoms, for even minimal periods
22 of time, unquestionably constitutes irreparable injury”); Tucker v. City of Fairfield,
23 398 F.3d 457, 464 (6th Cir. 2005) (same). Remarkably, the government’s
24 application does not even address at all the issue of Constitutional injury to Log
25 Cabin and to homosexual servicemembers.
26 On the other hand, maintaining the injunction in place while the government
27
5
The government does not even offer that there could be a moratorium on
28 investigations and discharges, at a minimum, while its appeal proceeds.
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1 pursues its appeal preserves servicemembers’ Constitutional rights and allows them
2 to continue serving in the military just as they do today. They will continue to be
3 held to the military standards applicable to all servicemembers, and subject to the
4 same discipline and regulations that apply to all. In the unlikely event that the
5 Court’s judgment is ultimately reversed and the Don't Ask, Don't Tell Act is
6 reinstated, the government may resume investigations and discharges with no ill
7 effects beyond the hiatus it will have experienced. But the ill effects to homosexual
8 servicemembers of the inverse scenario – disruption and termination of their
9 military careers, with merely the hollow satisfaction of abstract vindication when
10 the Court’s judgment is ultimately upheld – are irreparable. These individuals will
11 not be reinstated, even if reinstatement could make them whole for the deprivation
12 of Constitutional rights they would have suffered. The concrete injury to them
13 from an ill-advised stay of the injunction far outweighs the theoretical harm to the
14 government that might result from maintaining the injunction in place during the
15 appeal process, and tips the balance of hardships “sharply” in favor of plaintiff.
16 Witnesses at trial – men and women, officers and enlisted personnel, from
17 multiple branches of the service – presented powerful, unforgettable testimony of
18 the effects of DADT on their personal lives and on the lives of their unit comrades.
19 Compelled by DADT to lie and dissemble about their human nature, subjected to
20 unredressable humiliations, forced out of careers in which they were commended
21 and decorated: these individuals proved that DADT causes, every day that it
22 remains in force, irreparable injury to American servicemembers. “‘Faced with …
23 a conflict between financial concerns and preventable human suffering, we have
24 little difficulty concluding that the balance of hardships tips decidedly’ in favor of
25 the latter.” Golden Gate Rest. Ass’n, 512 F.3d at 1126, quoting Lopez, 713 F.2d at
26 1437.
27 D. The Public Interest Favors Denial of a Stay of the Injunction.
28 The analysis of where the public interest lies is a separate and additional
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1 consideration from that of irreparable injury. Golden Gate Rest. Ass’n, 512 F.3d at
2 1116. The public interest is not identical to the government’s interest; if it were,
3 this factor would always count in favor of sustaining a statute or granting a stay of
4 an injunction invalidating a statute, and there would be no need to include it as one
5 of several factors to be considered. Here, the public interest is in safeguarding the
6 Constitutional rights that define us as a nation. The public interest is not served by
7 merely giving blind deference to military judgment. Rather, the clear public
8 interest is in ensuring that the military, like every other institution of our society,
9 conforms to Constitutional requirements. “Congress, of course, is subject to the
10 requirements of the Due Process Clause when legislating in the area of military
11 affairs....” Weiss v. United States, 510 U.S. 163, 176, 127 L. Ed. 2d 1, 114 S. Ct.
12 752 (1994).
13 It must not be overlooked that it is not only servicemembers who are affected
14 by DADT. Servicemembers’ family and friends – third party members of the
15 public – are affected also, as their own First Amendment rights are impaired when a
16 servicemember cannot write them a private letter or express affection to them in
17 public. Their interests militate against the granting of a stay of injunction as well.
18 The moving papers attempt to transform the “presumptive constitutional
19 validity of an act of Congress” into an ipso facto conclusive declaration of the
20 public interest; the application goes so far as to claim (at pages 5-6) that the
21 “interim” invalidation of a statute by itself “constitutes sufficient grounds to enter a
22 stay.” Leaving aside the question of whether this Court’s permanent injunction
23 following a full trial on the merits is in any sense “interim,” it is simply not the case
24 that a stay is required whenever a statute is held unconstitutional. The cases cited
25 by the government do not support that proposition.
26 The language the government cites from New Motor Vehicle Bd. v. Orrin W.
27 Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 349, 98 S. Ct. 359 (1977) (Rehnquist,
28 J., in chambers) (“[A]ny time a State is enjoined by a Court from effectuating
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1 statutes enacted by representatives of its people, it suffers a form of irreparable

2 injury.”) was the ipse dixit of a single Justice. Citing no law, Justice Rehnquist
3 granted a stay of a three-judge district court’s injunction because he disagreed that
4 the plaintiff challenging a state statute had a protected 14th Amendment liberty or
5 property interest. By contrast, there is no question that a protected liberty interest is
6 implicated here; Witt v. Department of the Air Force, supra, makes that clear.
7 Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) relied on
8 that same unsupported statement in New Motor Vehicle Board. Moreover, the
9 procedural posture of the case is distinguishable; the case was about whether to
10 grant a stay pending a petition for writ of certiorari, which was unlikely to be
11 granted.
12 Finally, the government cites Bowen v. Kendrick, 483 U.S. 1304, 1304, 97 L.
13 Ed. 2d 787, 108 S. Ct. 1 (1987) (Rehnquist, J., in chambers) for the proposition that
14 the Supreme Court tends to hear cases on the merits where a district judge declares
15 an Act of Congress unconstitutional and often grants a stay upon the government’s
16 request. But Justice Rehnquist (again deciding the matter as a single Justice in
17 chambers) goes on to explain that there is no categorical rule mandating such a stay
18 in all cases. Rather, he explains that presumption of an act’s constitutionality is but
19 a factor to be considered in balancing the equities. Id. And far from the case here,
20 the Bowen balancing analysis did not require consideration of a statute that the
21 executive branch admitted did not further its stated goals.
22 III.
23 THE GOVERNMENT’S CLAIMED HARDSHIP IS A RED HERRING
24 As noted above, the heart of the government’s argument in its application is
25 to bemoan the administrative and rulemaking burden that would supposedly be
26 placed on the military if the Court’s injunction remains in place, and to plead that
27 the current military Working Group be allowed to complete its “orderly,” if
28 ponderous, research and recommendations project without interference from courts
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1 fulfilling their constitutional function.6 The Court should reject these arguments,
2 because they do not establish good cause for a stay of the injunction.
3 First, not only is the timing of the working group’s research arbitrary, but its
4 result is uncertain. As the Court has recognized when the government has
5 requested previous stays based on the working group’s process, that group’s report
6 could be negative; its conclusions could be rejected, by the Executive or the
7 military; and the Congress could disagree. Indeed, there is significant opposition
8 today in the Congress to a legislative repeal of DADT even if the working group’s
9 report supports repeal. Homosexual servicemembers are fighting and dying today
10 in two wars for their fellow Americans’ Constitutional rights; their own
11 Constitutional rights should not be held hostage to an uncertain bureaucratic
12 process that wants time to develop educational and training materials.
13 Secondly, the government has known since July 24, 2009, when this case
14 was set for trial, that there was a possibility that DADT would be declared
15 unconstitutional and that it might have to prepare for that eventuality. If it chose
16 not to do so with sufficient time, and not to start the Working Group review until a
17 time when its work would overlap with this trial, that is not reason to stay this
18 injunction now. And, critically, nothing in the injunction prevents the military from
19 developing all the policies and educational programs it needs to; its ability to do so
20 does not depend on the DADT policy remaining in place.
21 Finally, the military has announced that it is now complying with the
22 injunction and has stopped enforcing DADT pending these stay proceedings. See
23 6
The ten-page Declaration of Clifford L. Stanley – who, it now appears, should
have been the government’s 30(b)(6) witness on the topic of “the compatibility or
24 incompatibility of gay and lesbian Americans with service in the United States
Armed Forces, including the effect of the presence of such individuals, if any, on
25 unit cohesion, combat effectiveness, unit morale, good order, discipline, and
readiness to fight” – goes into excruciating detail of the minutiae of the military’s
26 supposed response to any change in DADT, and sheds crocodile tears for the
uncertainty that would supposedly hang over “our men and women in uniform” if
27 the military were forced to adjust to changing conditions “on-the-fly,” while
completely ignoring the Constitutional rights of tens of thousands of homosexual
28 servicemembers.
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1 http://www.defense.gov/news/newsarticle.aspx?id=61279 (Attachment 2). If this is

2 so, it belies the claim defendants make that compliance would cause ongoing
3 irreparable harm to the military. As shown at trial, the military already regularly
4 suspends DADT discharges in times of need, such as during combat operations;
5 there is no reason to believe that maintaining the injunction should cause any harm
6 to the military any more than any other such stop-loss order.
7 IV.
8 CONCLUSION
9 The government’s stated public position is that Don't Ask, Don't Tell
10 weakens our national security and must end. Log Cabin could not agree more with
11 the government on that point; the evidence at trial bore that out to a fare-thee-well.
12 This Court has now ended the policy, consistent with its Constitutional duties.
13 Staying the injunction that has been entered would have the effect of continuing to
14 weaken our national security, a result the government should be ashamed to be
15 seeking. This Court should deny the application.
16
17
Dated: October 15, 2010 WHITE & CASE LLP
18
19
By: /s/ Dan Woods
20 Dan Woods
Attorneys for Plaintiff
21 Log Cabin Republicans
22
23
24
25
26
27
28
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LCR V USA - LCR Preliminary Response To Request For Stay

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Case: 10-56634 10/20/2010 Page: 1 of 18 ID: 7516021 DktEntry: 4-1

Case No. 10-56634

IN THE UNITED STATES COURT OF APPEALS

LOG CABIN REPUBLICANS,

UNITED STATES OF AMERICA; ROBERT M. GATES,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

PRELIMINARY RESPONSE OF APPELLEE LOG CABIN REPUBLICANS

Dan Woods (CA SBN 78638)

LOSANGELES 882991 (2K)

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1, counsel for

Log Cabin Republicans certifies that:

1. Log Cabin Republicans is a not-for-profit corporation organized

pursuant to the District of Columbia Nonprofit Corporation Act and section

501(c)(4) of the Internal Revenue Code.

2. Log Cabin Republicans issues no stock and has no parent

corporation. No publicly-held corporation owns ten percent or more of the

stock of Log Cabin Republicans.

Dated: October 20, 2010 Respectfully submitted,

WHITE & CASE LLP

By: /s/ Dan Woods

Attorneys for Plaintiff/Appellee

LOSANGELES 882991 (2K)

Log Cabin Republicans (“Appellee” or “Log Cabin”), opposes the request of

(“Appellants”) for a temporary administrative stay pending appeal of the judgment

The government’s request for an “administrative stay” (by which it

a stay of the district court’s permanent injunction pending appeal) should be

passing at an oral argument, but in extensive reasoned opinions at multiple stages

of the proceedings below. The district court’s thoughtful analysis of each

argument the government makes here should not be rejected in a summary

proceeding, on less than one day’s consideration.

Furthermore, the district court’s injunction does not require appellants to

LOSANGELES 882991 (2K) 1

policy (“DADT”), and discontinue any pending investigations commenced under

LOSANGELES 882991 (2K) 2

injunction), to enforcing DADT (granting administrative stay), to not enforcing

Indeed, the evidence at trial demonstrated that no harm would occur by

ceasing enforcement of DADT. And a week after the Department of Defense

ceased enforcing DADT, that is exactly what occurred - nothing.

A stay of injunction under Fed. R. App. P. 8 is considered “extraordinary

LOSANGELES 882991 (2K) 3

of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008).

S.Ct. at 375 (rejecting the Ninth Circuit’s earlier “possibility” standard as

demonstrating that the circumstances justify an exercise of that discretion. Nken v.

government’s showing here fails all four factors.

The District Court arrived at the appealed from injunction against

pages of considered rulings. The government is trying to undo these considered

rulings in one day.

LOSANGELES 882991 (2K) 4

vindicating the constitutional rights of gay and lesbian servicemembers in our

associational standing and permitted the filing of an amended complaint. Log

declaration under the pseudonym John Doe.

The government again moved to dismiss. After several more rounds of

LOSANGELES 882991 (2K) 5

established “standing to bring suit on behalf of current and former homosexual

members of the armed forces.”3

is not exempt from its obligation to participate in discovery,4 extensive discovery

contrary to the government’s arguments, demonstrated that DADT impeded the

government’s stated interests of unit cohesion, morale, and readiness.

government’s Federal Rule of Civil Procedure 30(b)(6) witnesses. Col. Brady

confirmed that the military knowingly deploys servicemembers under investigation

DADT is needed for military readiness.

Following discovery, the government moved for summary judgment. The