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Case 2:04-cv-08425-VAP-E Document 172 Filed 06/09/10 Page 1 of 19 1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 JOSEPH H. HUNT VINCENT M. GARVEY 4 PAUL G. FREEBORNE W. SCOTT SIMPSON 5 JOSHUA E. GARDNER RYAN B. PARKER 6 U.S. Department of Justice Civil Division 7 Federal Programs Branch P.O. Box 883 8 Washington, D.C. 20044 Telephone: (202) 353-0543 9 Facsimile: (202) 616-8460 E-mail: [email protected] 10 Attorneys for Defendants United States 11 of America and Secretary of Defense 12 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 13 EASTERN DIVISION 14 LOG CABIN REPUBLICANS, ) No. CV04-8425 VAP (Ex) ) 15 Plaintiff, ) DEFENDANTS’ SUPPLEMENTAL ) BRIEF ON STANDARD OF 16 v. ) REVIEW ) 17 UNITED STATES OF AMERICA AND ) ROBERT M. GATES, Secretary of ) 18 Defense, ) ) 19 Defendants. ) ) 20 ) ) 21 ) ) 22 23 24 25 26 27 28 UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH DEFENDANTS' SUPPLEMENTAL BRIEF P.O. BOX 883, BEN FRANKLIN STATION ON STANDARD OF REVIEW WASHINGTON, D.C. 20044 (202) 353-0543 Case 2:04-cv-08425-VAP-E Document 172 Filed 06/09/10 Page 2 of 19 1 TABLE OF CONTENTS page 2 3 INTRODUCTION. 1 4 ARGUMENT .. 3 5 I. The Court Should Defer Adjudicating the Constitutional Challenge to DADT Based upon Recent Legislative Events. .3 6 II. The Court Already Has Correctly Ruled That the Witt 7 Standard Does Not Apply.. 6 8 III. Assuming Heightened Scrutiny Were Applied, the Standard in Beller Controls and Requires Judgment in Favor of 9 Defendants. 9 10 IV. LCR Cannot Satisfy its Burden under a Facial Challenge Regardless of the Standard of Review Applied by the Court. 12 11 V. Because the Only “Evidence” Appropriate for Consideration 12 in this Case Is the Statute and Legislative History, a Trial Concerning LCR’s Facial Constitutional Challenge Is 13 Unwarranted. 13 14 CONCLUSION . .14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH DEFENDANTS' SUPPLEMENTAL BRIEF P.O. BOX 883, BEN FRANKLIN STATION ON STANDARD OF REVIEW WASHINGTON, D.C. 20044 -i- (202) 353-0543 Case 2:04-cv-08425-VAP-E Document 172 Filed 06/09/10 Page 3 of 19 1 TABLE OF AUTHORITIES 2 CASES 3 Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980).. passim 4 Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 5 490 F.3d 718 (9th Cir. 2007).. 5 6 Bowers v. Hardwick, 478 U.S. 186 (1986). 10 7 Cook v. Gates, 8 528 F.3d 42 (1st Cir. 2008). ..10, 11,12 9 FCC v. Beach Commc'n, 508 U.S. 307 (1993). 13 10 Goldman v. Weinberger, 11 475 U.S. 503 (1986). 11, 13, 14 12 Holmes v. California Army National Guard, 124 F.3d 1126 (9th Cir. 1997).. 10 13 Hunt v. Wash. State Apple Adver. Comm’n, 14 432 U.S. 333 (1977). 8 15 Kremens v. Bartley, 431 U.S. 119 (1977). 4 16 Lawrence v. Texas, 17 539 U.S. 558 (2003). 10 18 Leyva v. Certified Grocers of Ca. Ltd., 593 F.2d 857 (9th Cir. 1979).. 5 19 Milavetz, Gallop & Milavetz, P.A. v. United States, 20 130 S. Ct. 1324 (2010). 14 21 Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997).. 12 22 Rostker v. Goldberg, 23 453 U.S. 57 (1981). 6 24 Sell v. United States, 539 U.S. 166 (2003). 7 25 Spector Motor Services v. McLaughlin, 26 323 U.S. 101 (1944). 4, 5 27 U.S. v. Vilches-Navarrete, 523 F.3d 1 (1st Cir. 2008). 4 28 UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH DEFENDANTS' SUPPLEMENTAL BRIEF P.O. BOX 883, BEN FRANKLIN STATION ON STANDARD OF REVIEW WASHINGTON, D.C. 20044 -ii- (202) 353-0543 Case 2:04-cv-08425-VAP-E Document 172 Filed 06/09/10 Page 4 of 19 1 United States v. Raines, 362 U.S. 17 (1960). 8 2 United States v. Salerno, 3 481 U.S. 739 (1987). 4, 12 4 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008). 8, 9 5 Witt v. Department of the Air Force, 6 527 F.3d 806 (9th Cir. 2008).. passim 7 STATUTES 8 10 U.S.C. § 654. 1, 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH DEFENDANTS' SUPPLEMENTAL BRIEF P.O. BOX 883, BEN FRANKLIN STATION ON STANDARD OF REVIEW WASHINGTON, D.C. 20044 -iii- (202) 353-0543 Case 2:04-cv-08425-VAP-E Document 172 Filed 06/09/10 Page 5 of 19 1 INTRODUCTION 2 Pursuant to the Court’s Order of May 27, 2010, see Doc. 170 at 26, 3 defendants submit this supplemental brief addressing the potential application of 4 the standard of review set forth in Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th 5 Cir. 2008), to plaintiff Log Cabin Republicans’ (“LCR’s”) facial challenge to the 6 “Don’t Ask, Don’t Tell” (“DADT”) statute, 10 U.S.C. § 654, and implementing 7 regulations. 8 First, at the outset, defendants urge this Court to defer any ruling as to the 9 applicability of the Witt standard to LCR’s facial challenge and, indeed, to stay all 10 further proceedings in this case because the political branches have taken concrete 11 steps to facilitate repeal of the DADT statute. On May 27, 2010, consistent with 12 the strong policy views of the Administration, a majority of the House of 13 Representatives and a majority of the Senate Armed Services Committee voted in 14 support of a measure to repeal the statute upon the issuance of a written 15 certification (signed by the President, the Secretary of Defense, and the Chairman 16 of the Joint Chiefs of Staff) stating, inter alia, that the Department of Defense had 17 completed its review of implementation of repeal, that the necessary policies and 18 regulations have been prepared, and the implementation of those policies and 19 regulations is consistent with standards of military readiness, military 20 effectiveness, unit cohesion, and recruiting and retention. In light of these 21 developments, principles of constitutional avoidance and respect for the coequal 22 branches of government militate in favor of a stay of proceedings pending 23 completion of the process already undertaken by the political branches. Indeed, 24 this is particularly true where, as here, a plaintiff brings a facial constitutional 25 challenge. Accordingly, the Court should await the outcome of the process in 26 which the political branches are now engaged before deciding the constitutional 27 question presented. 28 UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH DEFENDANTS' SUPPLEMENTAL BRIEF P.O. BOX 883, BEN FRANKLIN STATION ON STANDARD OF REVIEW WASHINGTON, D.C. 20044 -1- (202) 353-0543 Case 2:04-cv-08425-VAP-E Document 172 Filed 06/09/10 Page 6 of 19 1 Second, should the Court decide to proceed notwithstanding these 2 legislative developments, it already has correctly ruled in its June 9, 2009 Order 3 that the Ninth Circuit “explicitly” limited the three-part analysis set forth in Witt to 4 as-applied challenges, and that LCR’s facial challenge is therefore governed by 5 rational basis, not heightened review. See Doc. 83 at 17. There is no basis to 6 reconsider that ruling, which was and remains correct. Indeed, the Ninth Circuit 7 could not have been more clear on that score. The Court of Appeals stated: “[W]e 8 hold that this heightened scrutiny analysis is as-applied rather than facial. ‘This is 9 the preferred course of adjudication since it enables courts to avoid making 10 unnecessarily broad constitutional judgments.’” Witt, 527 F.3d at 819 (quoting 11 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 447 (1985)). Witt’s 12 heightened scrutiny standard thus has no application here. 13 Third, even if the Court were now to subject the DADT statute to some form 14 of heightened review beyond rational basis review, the Ninth Circuit previously 15 has considered and rejected, under intermediate scrutiny, a facial substantive due 16 process challenge to the prior, more restrictive version of the policy. See Beller v. 17 Middendorf, 632 F.2d 788, 810-11 (9th Cir. 1980) (Kennedy, J.). Because Witt 18 does not disturb the analysis employed in Beller with respect to facial challenges, 19 the Beller standard, not the as-applied Witt standard, is binding. Because LCR’s 20 substantive due process challenge to the DADT statutory policy would fail under 21 the Beller analysis, defendants are entitled to summary judgment as a matter of 22 law. 23 Finally, to the extent the Court nonetheless decides incorrectly to apply the 24 Witt as-applied test in its entirety to LCR’s facial challenge, a trial concerning that 25 facial challenge is unnecessary and inappropriate. As settled Supreme Court 26 precedent makes clear, whether under rational basis review or some form of 27 heightened scrutiny, reliance on expert witnesses to undermine the military 28 judgment of Congress is inappropriate. Under our constitutional scheme, it is not UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH DEFENDANTS' SUPPLEMENTAL BRIEF P.O. BOX 883, BEN FRANKLIN STATION ON STANDARD OF REVIEW WASHINGTON, D.C.

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