Federal judge warns on gay rights
on Sep 29, 2011 at 5:44 pm
NOTE TO READERS: The blog apologizes for the fact that the link to the Ninth Circuit decision was flawed. It should work now. Thanks.
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Accusing a federal trial judge of misusing her authority when she struck down the military’s ban on gays and lesbians in the service, a federal appeals court judge on Thursday lectured the rest of the judiciary against creating new rights for homosexuals out of the Supreme Court’s famous ruling eight years ago in Lawrence v. Texas.  Circuit Judge Diarmuid F. O’Scannlain did so as the Ninth Circuit Court threw out that lower court judge’s ruling interpreting Lawrence broadly. The three-judge panel found that decision by District Judge Virginia A. Philllips to be moot, because the so-called “don’t ask/don’t tell” policy at issue has now been repealed by Congress. (The decision is here; it includes Judge O’Scannlain’s separate added views.)
Apparently not content to have the judge’s ruling simply off the books, Judge O’Scannlain wrote a 10-page concurring opinion in order to provide what he called a “guidepost for responsible decision-making” for courts dealing with claims to gay rights based upon Lawrence.   Judge Phillips, who sits in Riverside, Calif., had relied heavily upon that 2003 precedent in nullifying the military gay ban last September; in October, she barred the Pentagon from enforcing the ban anywhere in the world. She did so in a case filed by a gay rights advocacy group, the Log Cabin Republicans.
After the “don’t ask/don’t tell” repeal law took effect nine days ago, ending a long-standing ban on homosexuals serving openly in uniform, the Obama Administration had asked the Ninth Circuit panel to declare the case to be moot, and to go further and vacate — that is, erase from the books, officially — Judge Phillips’ ruling and the worldwide injunction she had issued.  The Log Cabin Republicans had resisted those requests, arguing that the case was not dead because Congress might re-impose the ban and because those discharged from the service under the ban may suffer negative consequences from it. That organization also had indicated that it wanted to use Judge Phillips’ precedent in other gay rights cases. (A number of discharged gay individuals have cases pending in court, either seeking reinstatement or damages. The Phillips precedent could have aided those claims.)
In Thursday’s unanimous ruling, the three-judge panel granted both of the Administration’s requests. It declared the Phillips decision to be legally dead, and vacated it. Noting that the Log Cabin Republicans had stated that they intended “to use the district court’s judgment” in other cases, the panel responded: “We will be clear: It may not. Nor may its members nor anyone else. We vacate the district court’s judgment, injunction, opinions, orders, and factual findings — indeed, all of its past rulings — to clear the path completely for any future litigation. Those now-void legal rulings and factual findings have no precedential, preclusive, or binding effect.” When Congress repealed the “don’t ask/don’t tell” policy, the panel said, the Log Cabin Republicans got all that they had sought by suing the Pentagon’s leaders.
Seldom does a higher court use such sweeping language toward a lower court judge’s ruling, while wiping it off the books. Simple erasure of the ruling, apparently, was not enough — a sentiment that is perhaps further illuminated by the displeasure openly displayed by Judge O’Scannlain in his concurring opinion.
In the decision in Lawrence v. Texas, the Supreme Court had struck down a state law against sodomy. In doing so, the Court spoke in very broad terms about constitutional rights of personal privacy for adult gay couples, in their intimate relations and in their personal lives.  Gay rights advocates across the Nation have been using the precedent at the core of their arguments, including the attack on “don’t ask/don’t tell,” and against laws that deny marriage rights and other government-provided benefits to same-sex couples and individuals.
Judge O’Scannlain, however, wrote explicitly that “Lawrence did not establish any fundamental right.” It did not give lower courts any basis, the judge added, for creating any new fundamental rights for gays.  He lambasted Judge Phillips for the legal rationale she had used for nullifying the military gay ban, contending that she had not followed the formula that the Supreme Court itself had laid down for judging claims of violations of so-called “substantive due process” guarantees.
Although the case had to be dismissed as moot, the judge said, “if we had been able to reach the merits…, I would have been obliged to reverse.” He went on to make a further argument for “judicial self-restraint” whenever a court is asked “to break new ground in the field of substantive due process.”
It is not a common practice for federal judges, when a case has come to a formal end without a final ruling on the merits, to say how they would have voted. That Judge O’Scannlain did so suggested how affronted he was by Judge Phillips’ ruling.
