U.S. court vacates ruling on gays in military

SAN FRANCISCO Thu Sep 29, 2011 3:31pm EDT

Navy Counselor 1st Class Luz Bautista, who is a lesbian, (L) and Army Specialist William Hayes, who is bisexual, listen to a news conference in Los Angeles, California September 20, 2011. REUTERS/Lucy Nicholson

Navy Counselor 1st Class Luz Bautista, who is a lesbian, (L) and Army Specialist William Hayes, who is bisexual, listen to a news conference in Los Angeles, California September 20, 2011.

Credit: Reuters/Lucy Nicholson

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SAN FRANCISCO (Reuters) - A court ruling that had struck down as unconstitutional the now-defunct law banning gays from serving openly in the U.S. military must be vacated as moot, a federal appeals court decided on Thursday.

The decision came nine days after the repeal of the 1993 law known as "Don't Ask, Don't Tell" went into effect, ushering in a new era in the U.S. armed forces in which gay men and women can serve without the threat of being discharged due to their sexual orientation.

The ruling by the 9th U.S. Circuit Court of Appeals denied gay rights advocates an important legal precedent that they had argued should be preserved. A separate, widely watched case over the right to same-sex marriage is also under appeal before the 9th Circuit.

A federal judge in California last year found the "Don't Ask Don't Tell" law unconstitutional in a ruling in a legal challenge filed by a Republican gay group, the Log Cabin Republicans.

Even though Congress had repealed the law since that decision, the Log Cabin Republicans had wanted to keep the lower court ruling in place.

But the appeals court said that the case had became moot upon repeal of the law, and that none of the rulings in the case can be used as legal precedent in other litigation.

"Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect," the three-judge panel wrote in a unanimous decision.

R. Clarke Cooper, executive director of the Log Cabin Republicans, said the decision leaves open the possibility of future violations of the rights of U.S. service members.

"The court can vacate this ruling, but that does not change the fact that 'Don't Ask, Don't Tell' was unconstitutional," Clarke said in a statement.

In a separate concurrence, 9th Circuit Judge Diarmuid O'Scannlain warned the court not to overreach when it comes to gay rights.

"When judges sacrifice the rule of law to find rights they favor," O'Scannlain wrote, "I fear the people may one day find that their new rights, once proclaimed so boldly, have disappeared because there is no longer a rule of law to protect them."

O'Scannlain, nominated to the bench in the 1980s by Republican President Ronald Reagan, is considered one of the 9th Circuit's most conservative members.

The case in the 9th Circuit is Log Cabin Republicans v. the United States of America, 10-56813.

(Reporting by Dan Levine, Editing by Will Dunham)

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Comments (3)
KarlQ wrote:
Please! ALWAYS vacate/erase/cancel rulings obsoleted by new law!

The legal codes, like the tax codes, are becoming much too complex to be applicable, largely reducing everything significant into a long sequence of appeals and a decision by judges instead of meaningful law making by legislators. To reverse this trend, at a minimum, vacating obsolete rulings is essential.

Our President this day complained about the problem if a “patchwork” of law dealing with illegal immigrants. But FAR WORSE is a the “patchwork” of enforcement that seems to dominate in many areas of the law.

Prosecutorial discretion is an important part of law to allow the handling of truly exceptional cases, but when entire classes of crimes are ignored by the police (!) on the grounds that the prosecutors in their area will not prosecute, the ALL LAWS are made questionable…. Certainly, situations like this are not “fair and equal treatment under the law.”

Always push for the enforcement of all law by the police, allow limited discretion by prosecutors (not blanket exceptions) and INSIST upon “bad laws” being fixed by legislators, the ONLY constitutional process for streamlining our system of justice.

Sep 29, 2011 4:28pm EDT  --  Report as abuse
I find it ironic the Don’t Ask Don’t Tell law was to protect gay rights by recognizing the reality of the military, that no law protecting gays could be binding. Now they’re repealed Don’t Ask Don’t Tell, all bets are off… the military can now ask, gays can now tell, and as a result gays can end up getting kicked out of the military like before Don’t Ask Don’t Tell was in effect. Gays have come full circle to when the military could ask “Are you gay?” and if you say “No” and they find out otherwise, “you are in deep trouble, boy!” as I’m sure diehard military people will quip.

Sep 29, 2011 7:56pm EDT  --  Report as abuse
breezinthru wrote:
Looks like it’s time for a new law, Congress.

Sep 29, 2011 8:59pm EDT  --  Report as abuse
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