Log Cabin Republicans v. United States

PER CURIAM Opinion; Concurrence by Judge O’SCANNLAIN.

*1165 OPINION

We are called upon to decide whether the congressionally enacted “Don’t Ask, Don’t Tell” policy respecting homosexual conduct in the military is unconstitutional on its face.

I

A

In 1993, Congress enacted the policy widely known as Don’t Ask, Don’t Tell. The policy generally required that a service member be separated from the military if he had engaged or attempted to engage in homosexual acts, stated that he is a homosexual, or married or attempted to marry a person of the same sex. 10 U.S.C. § 654 (b) (repealed); see, e.g., Dep’t of Def. Instructions 1332.14, 1332.30 (2008).

The nonprofit corporation Log Cabin Republicans brought this suit in 2004, challenging section 654 and its implementing regulations as facially unconstitutional under the due process clause of the Fifth Amendment, the right to equal protection guaranteed by that Amendment, and the First Amendment right to freedom of speech. Log Cabin sought a declaration that the policy is facially unconstitutional and an injunction barring the United States from applying the policy. The district court dismissed the equal protection claim under Witt…

concurring specially:

I fully concur in the court’s opinion. The repeal of Don’t Ask, Don’t Tell has *1169 mooted this case, and our opinion properly vacates the district court’s judgment, injunction, rulings, and findings.

I write separately because our inability to reach the merits may leave uncertainty about the role Lawrence v. Texas, 539 U.S. 558 , 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003), may have in substantive due process challenges. Although Congress spared us the need to reach the merits in this case, other such challenges will come to the courts. Because “guideposts for responsible decisionmaking” on matters of substantive due process are “scarce and open ended,” Collins v. City of Harker Heights, 503 U.S. 115, 125 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992), I think it useful to explain how courts should approach the application of Lawrence in appropriate cases.

I

The Supreme Court has emphasized its “reluetan[ce] to expand the concept of substantive due process.” Collins, 503 U.S. at 125 , 112 S.Ct. 1061 . To confíne that concept to its proper bounds, the Court has developed an “established method” of substantive due process analysis that comprises two primary…

Henry C. Whitaker, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., argued the cause and filed the briefs for the defendants-appellants/defendants-appellees. With him on the briefs were Tony West, Assistant Attorney General, André Birotte Jr., United States Attorney, and Anthony J. Steinmeyer and August E. Flentje, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.

Dan Woods, White & Case LLP, Los Angeles, CA, argued the cause and filed a brief for the plaintiff-appellee/plaintiff-appellant. With him on the brief was Earle Miller, Aaron A. Kahn, and Devon A. Myers, White & Case LLP, Los Angeles, CA.

Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN, and BARRY G. SILVERMAN, Circuit Judges.

PER CURIAM Opinion; Concurrence by Judge O'SCANNLAIN.

PER CURIAM:

We are called upon to decide whether the congressionally enacted "Don't Ask, Don't Tell" policy respecting homosexual conduct in the military is unconstitutional on its face.

In 1993, Congress enacted the policy widely known as Don't Ask, Don't Tell. The policy generally required that a service member be separated from the…