Judges Nullify Earlier DADT Ruling

BY Michelle Garcia

September 29 2011 1:25 PM ET

A judge's 2010 decision deeming "don't ask, don't tell" unconstitutional was nullified by a federal appeals court Thursday morning.

The law, which has since been repealed by Congress, was also the point of contention in a lawsuit filed by the Log Cabin Republicans against the U.S. government. Last year, when the suit was finally argued, district court judge Virginia Phillips ruled that the law was unconstitutional. Congress voted to repeal the law in December, and repeal became effective last week.

Appeals judges Arthur Alarcon, Diarmuid O'Scannlain, and Barry Silverman wrote that Phillips's decision must be vacated "to clear the path for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect. The repeal of 'don’t ask, don’t tell' provides Log Cabin with all it sought and may have had standing to obtain."



R. Clarke Cooper, an Army captain and executive director of the Log Cabin Republicans, slammed the Obama administration for not letting the precedent set by Judge Phillips stand.

"The ruling in Log Cabin Republicans v. United States is the reason why Congress finally acted to end this failed and unconstitutional policy," he said. "This decision by the Ninth Circuit denies more than 14,000 discharged gay and lesbian servicemembers an important means of obtaining justice for the wrong perpetuated against them under the ban, and leaves open the possibility of future violations of servicemembers' rights. "

Dan Woods, the lead attorney who argued on behalf of LCR, said he expects a re-hearing before the ninth circuit.

"We are, of course, disappointed by today's ruling but we will continue to fight on for the constitutional rights of all people impacted by 'don't ask, don't tell,'" he said.

Army veteran and Servicemembers Legal Defense Network executive director Aubrey Sarvis said he expected the Ninth Circuit's decision.

“We do regret that the court did not uphold Judge Phillips’s ruling that ‘don’t ask, don’t tell’ was unconstitutional," he said in a statement. "Notwithstanding today’s decision, the Log Cabin case, like the Cook case before it, played a major role in persuading policy makers to repeal DADT."

Alexander Nicholson, a veteran who was involved in the lawsuit,  said he was disappointed by the recent decision.

"This resolution to the Log Cabin lawsuit is unfortunate for lesbian and gay service members and those dismissed under this policy, as there remains no law or ruling prohibiting future discrimination of this sort in the armed forces," said Nicholson, executive director of Servicemembers United. "Log Cabin has done a commendable job in pursuing this case over the years, and I am proud to have served as the sole named veteran plaintiff in this case for Log Cabin, which enabled the case to continue on to this point."













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