Regarding this, Lambda Legal’s Jon Davidson weighs in:
Date: Mon, 11 Jul 2011 14:20:46 -0700
From: Jon Davidson, Legal Director, Lambda Legal
To: Rex Wockner
… It appears that the Ninth Circuit panel that will be hearing argument the week of August 28th wants to reach the constitutionality of the Don’t Ask, Don’t Tell law and has seen through the government’s effort to deflect attention from that question to whether the DADT Repeal Act is a reasonable way of dismantling the policy. If the government isn’t going to challenge the district court ruling that DADT is unconstitutional, then the court appears inclined to get someone else to argue in favor of the measure’s constitutionality so that it has actual adversity between the presentations on that issue. I doubt either house of Congress (or even the BLAG) will seek to intervene in this one; BLAG has their hands more than full with DOMA. Depending on how quickly the Ninth Circuit acts, this could lead to a ruling on DADT’s constitutionality before the repeal goes into effect (which doesn’t happen until 60 days after certification, which STILL hasn’t happened). That ruling could include critical decisions on questions such as the level of scrutiny due to sexual orientation discrimination, which would have an impact on many cases, ranging from the multiple DOMA challenges in the Ninth Circuit to Perry to other cases. … So, I do see that aspect of the order as vitally important.
At the same time, the mootness issue is also quite significant as well, for two reasons. First, if the Ninth Circuit concludes that the end of the DADT policy does not make the case moot, it is likely to issue a ruling on these issues even if it can’t get its opinion out before 60 days after certification. Second, as detailed in Lambda Legal’s amicus brief to the Ninth Circuit, there are many ongoing impacts of the DADT law that the Repeal Act has not addressed. While the Department of Defense could address them, it sill has not done so. Assuming DADT is held unconstitutional, these include whether those discharged in the past pursuant to that policy under less than honorable circumstances (or with a notation in their records about the grounds for discharge) should have their discharge upgraded and/or records corrected; whether proceedings to recoup enlistment bonuses and tuition payments from those not allowed to continue their service because of the unconstitutional application of DADT must be terminated; and whether those discharged pursuant to an unconstitutional policy are entitled to the same benefits they would be receiving if they had been allowed to serve out their terms (including pensions that may not have vested due to their discharge). The Ninth Circuit could issue a decision that impacts all of these questions, which are incredibly important to thousands of veterans discharged under DADT.
Jon W. Davidson