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Log Cabin Republicans v. United States

September 9, 2010

LOG CABIN REPUBLICANS, A NON-PROFIT CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND ROBERT M. GATES, SECRETARY OF DEFENSE, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



MEMORANDUM OPINION

[Filed concurrently with Findings of Fact & Conclusions of Law]

Plaintiff Log Cabin Republicans attacks the constitutionality of the statute known as the "Don't Ask, Don't Tell" Act ("the Act" or "the Policy"), found at 10 U.S.C. § 654, and its implementing regulations.*fn1 Plaintiff's challenge is two-fold: it contends the Act violates its members' rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members' rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.*fn2

The Court finds Plaintiff Log Cabin Republicans (sometimes referred to in this Order as "Log Cabin," "LCR," or "Plaintiff"), a non-profit corporation, has established standing to bring and maintain this suit on behalf of its members. Additionally, Log Cabin Republicans has demonstrated the Don't Ask, Don't Tell Act, on its face, violates the constitutional rights of its members. Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.

I. PROCEEDINGS

This case was tried to the Court on July 13 through 16 and July 20 through 23, 2010. After conclusion of the evidence and closing arguments on July 23, 2010, both sides timely submitted supplemental post-trial briefing on the admissiblility of a pretrial declaration submitted by Log Cabin Republicans member John Doe,*fn3 and the matter stood submitted.

II. STANDING

Plaintiff Log Cabin Republicans is a non-profit corporation founded in 1977 and organized under the laws of the District of Columbia. (Trial Exs. 109 [Bylaws], 110 [Articles of Incorporation].) Defendants challenge LCR's standing to bring and maintain this action on behalf of its members.

Plaintiff bears the burden of establishing its standing to invoke federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). To bring suit on behalf of its members, an association must establish the following: "(a) [at least one of] its members would otherwise have standing to sue in [his or her] own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). To satisfy the first element of associational standing, a organization must demonstrate constitutional standing as to at least one member of the organization, as follows: (1) injury in fact; (2) caused by the defendants; (3) which likely will be redressed by a favorable decision by the federal court. Lujan, 504 U.S. at 560-61; see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004).

Turning first to the associational standing requirements, Plaintiff established at trial that the interests it seeks to vindicate in this litigation are germane to LCR's purposes, satisfying the second requirement for associational standing. Plaintiff's mission includes "assist[ing] in the development and enactment of policies affecting the gay and lesbian community . . . by [the] federal government[]. . . and advocat[ing] and support[ing] . . . activities or initiatives which (i) provide equal rights under law to persons who are gay or lesbian, [and] (ii) promote nondiscrimination against or harassment of persons who are gay or lesbian . . . ." (Trial Ex. 109 [Mission Statement, attached as Ex. A to Bylaws].) The relief sought here, i.e., the ability of homosexual servicemembers to serve openly in the United States Armed Forces through repeal of the Don't Ask, Don't Tell Act, relates to both aspects of Log Cabin's mission.

Plaintiff also has satisfied the third requirement of associational standing, "that the suit not demand the participation of individual members." Associated Gen. Contractors of Cal. v. Coal. for Econ. Equity, 950 F.2d 1401, 1408 (9th Cir. 1991) (citations omitted). Plaintiff seeks only declaratory and injunctive relief in its First Amended Complaint; when "the claims proffered and relief requested do not demand individualized proof on the part of its members," such as when only declaratory and prospective relief are sought, the individual members of an association need not participate directly in the litigation. Id.; see also Hunt, 432 U.S. at 343 (citing Warth v. Seldin, 422 U.S. 490, 515 (1975)).

Defendants directed their challenge primarily to the first requirement of associational standing, i.e., whether there exists at least one member of the association who could maintain this suit in his or her own right. According to Defendant, neither of the two members Plaintiff relies upon to confer associational standing on it meets the requirements for that role, because neither was a member of Log Cabin Republicans continuously from the date of the commencement of this action until the date of trial.

Plaintiff filed this action on October 12, 2004 (Doc. No. 1); after the Court granted Defendants' motion to dismiss, Plaintiff filed a First Amended Complaint on April 28, 2006. (Doc. No. 25.) The Court already has ruled that standing in this case should be examined as of April 28, 2006, the date Plaintiff filed its First Amended Complaint. (See Doc. No. 170 ["May 27, 2010, Order"] at 15.) For the reasons discussed below, as of that date at least one of Log Cabin's members, John Nicholson, had standing and could have pursued the action individually. Even if the Court looks to the date the original Complaint was filed as the relevant one for standing purposes, however, Plaintiff still satisfies the associational standing requirements, as Plaintiff proved by a preponderance of the evidence at trial that John Doe was a member in good standing as of October 12, 2004.

A. John Nicholson's Standing

John Alexander Nicholson, III, enlisted in the United States Army in May 2001. (Trial Tr. 1135:6-12, July 20, 2010.) As described in more detail below, he received an honorable discharge on March 22, 2002, pursuant to the Don't Ask, Don't Tell Act. (Trial Tr. 1183:25-1184:3, 1185:22-1187:9, July 20, 2010.) Nicholson satisfies all three of the requirements for constitutional standing, i.e., "injury in fact" caused by the defendants (his discharge by Defendants pursuant to the Policy), which is redressable by the relief sought in this lawsuit, as he testified he would rejoin the Army if the policy was no longer in effect. (Trial Tr. 1209:4-5, July 21, 2010.)

Nicholson first became involved with Log Cabin Republicans in August 2005, when he and others embarked on a nationwide speaking tour sponsored by LCR to raise awareness of the movement to repeal the Don't Ask, Don't Tell Act. (Trial Tr. 1206:15-1207:11, July 21, 2010.) LCR's national and Georgia state chapter leaders asked Nicholson to join the organization formally after he gave a speech at LCR's national convention on April 28, 2006; he did not pay dues or make a cash contribution at that time, but was told his membership was granted in exchange for his services to the organization. (Trial Tr. 1207:22-1208:25, 1211:25-1212:15, July 21, 2010.) Later he was told his was an honorary membership. (Trial Tr. 1211:10-12, 1214:13-15, July 21, 2010.)

Thus, Nicholson officially joined Log Cabin Republicans on April 28, 2006, and has been a member continuously ever since. (Trial Tr. 1208:11-15, 1214:24-1215:17, July 21, 2010.) He testified credibly that he did not complete a paper membership application form that day because he gave the necessary information to an LCR administrative assistant who entered it directly into a computer. (Trial Tr. 1211:15-1212:15, July 21, 2010.) Plaintiff maintains an electronic database of its membership which lists Nicholson as a member of Log Cabin Republicans as of April 28, 2006. (Trial Tr. 1209:20-22, 1212:16-1213:16, July 21, 2010.) Nicholson testified that he remembered the precise date Log Cabin's Georgia chapter granted him honorary membership because it was the same day he addressed LCR's national convention. (Trial Tr. 1208:11-15, 1210:11-1212:15, July 21, 2010.)

The testimony of James Ensley, President of Plaintiff's Georgia chapter since 2006 and a member of LCR's national board of directors since 2008, corroborated Nicholson's testimony regarding the date he became a member of LCR. (Trial Tr. 68:21-70:21, July 13, 2010.) Ensley testified that the Georgia chapter conferred honorary membership on Nicholson at the 2006 Log Cabin Republicans national convention, in recognition of his "remarkable" efforts on the nationwide speaking tour and on college campuses toward repeal of the Don't Ask, Don't Tell Act. (Trial Tr. 70:2-16, July 13, 2010.) Ensley specifically recalled the date the Georgia chapter conferred honorary membership on Nicholson because Ensley's congressman had arranged a private tour of the White House for him on the morning of April 28, 2006, which was the same day Nicholson addressed the convention. (Trial Tr. 70:17-71:6, July 13, 2010.) The Court found Ensley to be a candid and credible witness.

Plaintiff also produced the credible testimony of Terry Hamilton, a 25-year member of Log Cabin Republicans and presently chairman of its national board of directors. (Trial Tr. 33:11-35:22, July 13, 2010.) He verified that the organization's membership records reflected Nicholson's membership status since April 28, 2006, and also that Nicholson regularly attended and spoke at the organization's annual conventions. (Trial Tr. 43:14-45:1, July 13, 2010.) Based on these indicia, Hamilton understood Nicholson to be a member of the organization since that date. (Trial Tr. 38:8-39:3, July 13, 2010.)

Thus, at the time Nicholson was conferred honorary membership, he satisfied the requirements for membership under section 2.02 of the Log Cabin Republican Bylaws, which states:

Honorary and Special Members: The Board of Directors may establish other criteria for granting an Honorary Membership to Log Cabin Republicans for individuals who have exhibited a unique or noteworthy contribution to the Mission of the Corporation or a Special Membership to Log Cabin Republicans for individuals or entities that have provided assistance to the Corporation.*fn4 (Trial Ex. 109.)

Accordingly, Log Cabin Republicans has standing through Nicholson, who himself satisfies all the requirements for constitutional standing and has been a member of LCR from the date the First Amended Complaint was filed to the present.

The Court rejects Defendants' suggestion that LCR "manufactured" its standing for purposes of this lawsuit. (See Doc. No. 188 [Defs.' Proposed Findings of Fact & Conclusions of Law] at 3.) The only authority Defendants cite on this point is Washington Legal Foundation v. Leavitt, 477 F. Supp. 2d 202, 211 (D.D.C. 2007), holding the manufacture of standing "weakens" an association's ability to maintain a lawsuit on behalf of its members. The record before the district court in Washington Legal Foundation revealed facts not present here, however. As that court explained, the Washington Legal Foundation's board of directors explicitly decided to bring suit, and then set about to find and recruit persons who would confer standing on it. By contrast, Martin Meekins, a member of LCR's national board of directors, testified that the initiative for filing this lawsuit came from the rank and file of the organization; Meekins then interviewed members regarding the viability of a lawsuit and to determine if they met the requirements to confer standing on the organization and wished to bring the lawsuit. (Trial Tr. 704:8-19, 705:11-707:12, July 16, 2010.)

Although not explicitly argued, Defendants' only factual basis for contending that Log Cabin Republicans manufactured standing appears to be the identity of dates on which John Nicholson became an LCR member and the First Amended Complaint was filed. The Court found credible, however, the testimony of the several witnesses who testified about the reason LCR bestowed an honorary membership on Nicholson that day, as explained above.

Washington Legal Foundation is, of course, not binding authority on this Court, but to the extent it provides guidance, it only holds that "manufacture" of standing weakens but does not destroy an association's ability to maintain its suit. Furthermore, there is no evidence here that LCR manufactured standing, so Washington Legal Foundation is factually dissimilar.

B. John Doe's Standing

For the reasons set forth in its May 27, 2010, Order, the Court looks to the filing date of the First Amended Complaint to determine standing. (See May 27, 2010, Order at 15.) Nevertheless, even accepting Defendants' contention that standing in this case must be established as of October 12, 2004, when the original Complaint was filed, Log Cabin Republicans satisfies that requirement through its member John Doe.

John Doe serves as a lieutenant colonel in the United States Army Reserve. He joined Log Cabin Republicans in early September 2004 by completing an application form (using a pseudonym) and paying annual dues through Martin Meekins, then a member of Plaintiff's national board of directors. Meekins accepted the application form and dues payment from Doe and forwarded them to LCR's national headquarters. Doe arranged to pay his membership dues in this manner because he feared he would be discharged from the Army Reserve pursuant to the Don't Ask, Don't Tell Act if he joined the organization openly, using his true name. (Trial Ex. 38.)

To comply with the Don't Ask, Don't Tell Act, Doe must keep his sexual orientation a secret from his co-workers, his unit, and his military superiors, and he may not communicate the core of his emotions and identity to others in the same manner as heterosexual members of the military, on pain of discharge from the Army. (Doc. No. 212 ["July 6, 2010, Order"] at 16; Trial Ex. 38.)

The Court ruled in its May 27, 2010, Order that Plaintiff raised a triable issue of material fact as to imminent harm related to Doe. (May 27, 2010, Order at 16-19.) The Court now finds that Doe has established the three elements of constitutional standing: he faces a concrete injury caused by Defendants -- discharge from the Army Reserve -- which is likely, not speculative, in nature, given the mandatory language of the Don't Ask, Don't Tell Act, see 10 U.S.C. § 654 (b)(2), and which would be redressed by a favorable decision by the Court in this action.

C. Continuity of Standing

Defendants contended for the first time in their closing argument that Plaintiff lacks standing because it had not proven at trial that either of the individual members on whom it relies to confer associational standing upon it had been a member of the organization continuously from the initiation of the action onwards.

Insofar as LCR relies on Nicholson's membership to confer associational standing upon the organization, Defendants' argument fails. Nicholson's membership in Log Cabin Republicans has been uninterrupted and continuous since April 28, 2006, the date Plaintiff's Georgia chapter conferred honorary membership upon him and also the date Plaintiff filed its First Amended Complaint. In light of the Court's May 27, 2010, Order, this is sufficient.

As Plaintiff relies also on Doe's membership to confer associational standing upon it, the Court examines the continuity of standing question as to him as well. Doe paid annual membership dues shortly before this action was filed in October 2004, but LCR did not introduce evidence showing Doe paid dues, or otherwise made a financial contribution, to the organization after 2004. A plaintiff who has established standing must retain his or her "personal stake" in the litigation throughout the proceedings. See Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78 (1990); Williams v. Boeing Co., 517 F.3d 1120, 1128 (9th Cir. 2008). When a plaintiff loses that "personal stake" in the lawsuit, a court loses the ability to grant relief and must dismiss the action on the basis of mootness because the plaintiff no longer satisfies the redressability element of constitutional standing. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 68-72 (1997) (mootness); Williams, 517 F.3d at 1128 (redressability).

The cases cited above addressing loss of standing do not arise in an associational standing context, however. Whether one regards Plaintiff Log Cabin Republicans or John Doe as the party whose standing is at issue, neither lost a "personal stake" in the litigation when Doe's annual period of membership lapsed.

First, there was conflicting evidence regarding the effect of a member's nonpayment of dues. James Ensley testified that when a member failed to renew his or her annual dues payment, the Log Cabin Republicans viewed the member as a "former" or "inactive" member, but the name would not be stricken from LCR's membership rolls or electronic database simply because of tardiness in paying annual dues. (Trial Tr. 74:12-75, July 13, 2010.) Terry Hamilton, another member of the national board of directors, testified that a member who failed to renew his membership timely no longer would be considered a member, but his testimony did not contradict Ensley's testimony regarding the mailing list or membership rolls. (Trial Tr. 57:5-8, July 13, 2010.)

Nevertheless, neither Log Cabin Republicans nor Doe lost the necessary personal stake in this litigation merely because Doe did not pay dues after the initial year. Doe still served in the Army Reserve and still was subject to discharge under the Don't Ask, Don't Tell Act. Thus, he still had a personal stake in the outcome of the case, and his injury -- his susceptibility to discharge under the Act -- continued to be redressable by favorable resolution of the lawsuit.

Nor is this a case where standing has been lost because of a change in circumstances rendering the subject matter of the case moot: the Act has not been repealed and the challenged policy is still in effect; Doe is still serving and subject to discharge under it;*fn5 Nicholson already has been discharged under it and cannot re-enlist as he wishes to do. Finally, the dispute over the constitutionality of the Act has not been resolved.

Likewise, the redressability aspect of constitutional standing remains alive despite the lapse in Doe's dues-paying membership status. Doe's imminent injury -- the mandatory nature of his discharge under the policy -- would be addressed through a favorable ruling in this action.

Finally, even assuming Defendants were correct that Log Cabin Republicans failed to prove standing through Doe based on the lack of evidence he paid dues after 2005, this would not require a finding that Plaintiff could not maintain its claims. Plaintiff had standing to file suit based on the undisputed evidence of Doe's membership as of October 12, 2004, the date Log Cabin Republicans filed this action. Assuming Doe's membership lapsed a year later, in early September 2005, Plaintiff lacked standing temporarily from that time until April 28, 2006, when Nicholson became a member of Log Cabin Republicans. Courts have recognized that a plaintiff who possesses standing when it brings suit, later loses it, and then regains standing before entry of judgment, may still maintain its claims. See, e.g., Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 F.3d 1198, 1203 (Fed. Cir. 2005) (finding plaintiff that owned patent at outset of litigation, assigned it to subsidiary, then reacquired it before judgment may maintain an infringement action); see also Caterpillar, Inc. v. Lewis, 519 U.S. 61, 64, 70, 73 (2005). Thus, assuming that Log Cabin Republicans lacked standing at some point between early September 2005 and April 28, 2006, it still may maintain its claims now.

III. EVIDENCE PRESENTED AT TRIAL

A. Plaintiff's Burden on a Facial Challenge

In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held a plaintiff challenging the validity of a law on its face must establish that "no set of circumstances exists under which the Act would be valid." Id. at 745. The defendants in Salerno were detained pending trial under the provisions of the Bail Reform Act; they challenged the Act, on its face, claiming it unconstitutionally violated the Fifth and Eighth Amendments. More recently, in Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), the Supreme Court noted the criticisms leveled at the Salerno standard and recognized an alternative the test as follows: "a facial challenge must fail where the statute has a 'plainly legitimate sweep.'" Id. at 449 (citing Washington v. Glucksberg, 521 U.S. 702, 739-740 & n.7 (1997) (Stevens, J., concurring)); see also United States v. Stevens, 559 U.S. ___, ___, 130 S.Ct. 1577, 1587 (2010) (citing Glucksberg and noting the existence of two standards for facial challenges outside the First Amendment context).

The Court considers the evidence presented at trial in this facial challenge not for the purpose of considering any particular application of the Don't Ask, Don't Tell Act, but rather for the permissible purposes described in Section III(B) below. (See infra Section III(B).) Plaintiff's evidence, as described below, amply illustrates that the Act does not have a "plainly legitimate sweep." Rather, Plaintiff has proven that the Act captures within its overreaching grasp such activities as private correspondence between servicemembers and their family members and friends, and conversations between servicemembers about their daily off-duty activities. Plaintiff also has proven that the Act prevents servicemembers from reporting violations of military ethical and conduct codes, even in outrageous instances, for fear of retaliatory discharge. All of these examples, as well as others contained in the evidence described below, reveal that Plaintiff has met its burden of showing that the Act does not have a "plainly legitimate sweep."

Finally, the Court notes Defendants' reliance on Salerno and its progeny, particularly Cook v. Gates, 528 F.3d 42 (1st Cir. 2008), in urging the Court to reject Log Cabin's facial challenge. (Defs.' Mem. Cont. Fact & Law at 5; Trial Tr. 1670:14-21-1671:23, 1684:12-14, July 23, 2010.) In Cook, the First Circuit reasoned a facial challenge the Don't Ask, Don't Tell Act failed because Lawrence "made abundantly clear that there are many types of sexual activity that are beyond the reach of that opinion," and "the Act includes such other types of sexual activity" because it "provides for the [discharge] of a service person who engages in a public homosexual act or who coerces another person to engage in a homosexual act." 528 F.3d at 56 (citing Lawrence, 539 U.S. at 578).

The Court is not bound to follow this out-of-Circuit authority, and in any event finds the logic of Cook unpersuasive. First, Cook employed the formulation from Salerno rather than the Supreme Court's more recent articulation of the test for facial challenges set forth in Washington State Grange. Furthermore, the examples the Cook court cited as grounds for discharge "under the Act" actually are bases for discharge of any servicemember, whether the conduct in question is homosexual or heterosexual. In fact, the Cook decision provides no citation to any provision of the Don't Ask, Don't Tell Act specifically listing either of its examples as grounds for discharge under that legislation.

B. Evidence Properly Considered on a Facial Challenge

Defendants asserted relevance (and often other) objections to nearly every exhibit Plaintiff sought to introduce into evidence during trial, as well as to nearly all the testimonial evidence offered. According to Defendants, because Plaintiff challenges the constitutionality of the statute on its face, rather than challenging its application, the only evidence the Court should -- indeed may -- consider, is the statute itself and the bare legislative history; thus, according to Defendants, all other evidence is irrelevant.*fn6

Defendants further contend that while examining the legislative record, the Court must not pay heed to any illegitimate motivations on the part of the enacting lawmakers. Defendants cite several cases as authority for these assertions, beginning with United States v. O'Brien, 391 U.S. 367 (1968). In O'Brien, the government charged and convicted the defendant for burning his draft card; the defendant contended the law under which he was prosecuted was unconstitutional because Congress enacted it for the unlawful purpose of suppressing speech. Id. at 383. The Supreme Court rejected this argument, holding "under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for declaring this legislation unconstitutional. It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." Id.

In part, the O'Brien Court founded its reasoning on the difficulty of discerning a unified legislative "motive" underlying any given enactment: "What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it . . . ." Id. at 384. Thus, O'Brien instructs that when "a statute . . . is, under well-settled criteria, constitutional on its face," a court should not void the law based on statements by individual legislators. Id.

O'Brien does not stand for the proposition urged by Defendants, however, that when deciding whether a challenged law "is, under well-settled criteria, constitutional on its face," this Court should limit itself to examining only the statute's legislative history. In fact, in the O'Brien decision the Supreme Court specifically pointed to two cases, Grosjean v. American Press Co., 297 U.S. 233 (1936), and Gomillion v. Lightfoot, 364 U.S. 339 (1960), noting that they "stand, not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional." O'Brien, 391 U.S. at 394 (emphasis added). In both Grosjean and Gomillion, the Court noted, the purpose of the law was irrelevant "because [of] the inevitable effect -- the necessary scope and operation." Id. at 385 (citations omitted). Therefore, under these authorities, the court may admit and examine evidence to determine the "scope and operation" of a challenged statute; nothing in O'Brien, Grosjean, or Gomillion limits the Court's discretion to consider evidence beyond the legislative history.

Defendants also cite City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984) as support for their position regarding the inadmissibility of Plaintiff's evidence. Foley arose out of a discovery dispute in a facial constitutional challenge to a Las Vegas zoning ordinance restricting the location of "sexually oriented businesses." Id. at 1296. One of the affected businesses sought to depose city officials regarding their motives in enacting the ordinance; after the city failed in its efforts to obtain a protective order from the District Court, it sought mandamus relief from the Ninth Circuit Court of Appeals. Id.

The Ninth Circuit reviewed the case law prohibiting inquiry into "alleged illicit legislative motive," and relying on O'Brien, granted the writ, directing the district court to issue a protective order. Id. at 1299. In rejecting the arguments of the party seeking to depose the legislators, the Foley court described the following types of evidence appropriately considered by a court asked to determine a First Amendment challenge: objective indicators as taken from the face of the statute, the effect of the statute, comparison to prior law, facts surrounding enactment of the statute, the stated purpose, and the record of the proceedings.

Foley, 747 F.2d at 1297 (citations omitted). And finally, the Ninth Circuit noted, "basic analysis under the First Amendment . . . has not turned on the motives of the legislators, but on the effect of the regulation." Id. at 1298 (emphasis added).

As Defendants correctly point out, these authorities do hold that isolated (and in this case, sometimes inflammatory) statements of Senators and House members during the Don't Ask, Don't Tell Act legislative hearings should not be considered by the Court. Nevertheless, this does not affect, much less eviscerate, the language in the authorities cited above that Defendants would have the Court ignore, holding that a court deciding a facial challenge can and should consider evidence beyond the legislative history, including evidence regarding the effect of the challenged statute.

Finally, the case now before the Court includes a facial challenge on substantive due process as well as First Amendment grounds. Therefore, it should be noted that although the authorities discussed above dealt with evidence properly considered by courts in resolving First Amendment facial challenges, their holdings regarding the admissibility of broad categories of testimonial and documentary evidence are echoed in the authorities considering facial challenges on due process grounds. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Reno v. Flores, 507 U.S. 292, 309 (1993); Tucson Woman's Clinic v. Eden, 379 F.3d 531, 556-57. (9th Cir. 2004); Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 707 (9th Cir. 1992); see generally, Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009).

In Lawrence, petitioners pled nolo contendere to charges under a Texas statute forbidding certain sexual acts between persons of the same sex. They then raised a facial challenge to the statute's constitutionality under the Due Process and Equal Protection clauses of the Fourteenth Amendment. In reaching its decision that the Texas statute indeed was unconstitutional, the Supreme Court's majority reviewed at length the history of the common law prohibiting sodomy or regulating homosexuality, the effect of the statute ("The stigma this criminal statute imposes, moreover, is not trivial . . . . We are advised that if Texas convicted an adult for private consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. . . ."), facts surrounding enactment of the statute, and comparison with other laws. Lawrence, 539 U.S. at 567-79.

Accordingly, the following discussion of Plaintiff's substantive due process and First Amendment challenges to the Act refers to evidence properly adduced by Log Cabin Republicans and admitted at trial. (As noted above, apart from the Act itself and its legislative history, Defendants admitted no evidence and produced no witnesses.)

C. Lay Witness Testimony

1. Michael Almy

Michael Almy served for thirteen years as a commissioned officer in the United States Air Force, finishing his service as a major. (Trial Tr. 726:21-727:11, 728:11-12, July 16, 2010.) Like several other witnesses, he came from a family with a heritage of military service; his father retired as a colonel in the Air Force, and two uncles served as career military officers as well. (Trial Tr. 728:13-22, July 16, 2010.)

Almy entered active duty in 1993, after obtaining an undergraduate degree in Information Technology while serving in the Army ROTC program. He did not self-identify as a gay man until a few years later. (Trial Tr. 726:23-727:2, 819:3-12, July 16, 2010.) After that, he testified, the Don't Ask, Don't Tell Act created a natural barrier between himself and his colleagues, as he could not reveal or discuss his personal life with others. (Trial Tr. 820:6-821:4, 821:19-822:9, July 16, 2010.) While it was common for the officers to socialize when off duty, he could not join them. (Trial Tr. 821:19-822:9, July 16, 2010.) All of this may have contributed to creating an aura of suspicion about him, and a sense of distrust. (Trial Tr. 820:19-821:4, July 16, 2010.)

Almy's modest demeanor as a witness and matter-of-fact recitation of his service did not disguise his impressive record in the Air Force. During his career, Almy was deployed to Saudi Arabia three times and helped enforce the Southern "no fly" zone over Iraq. Almy set up new communications bases throughout the theaters in Jordan, Saudi Arabia, and Iraq, and was deployed in Saudi Arabia, serving in the Communications Directorate, during the invasion of Iraq in 2003. (Trial Tr. 742:16-743:11, 746:4-747:20, July 16, 2010.) In 2003, after returning from his second deployment to Saudi Arabia, Almy was promoted to the rank of major and accepted a position as the Chief of Maintenance for the 606th Air Control Squadron in Spangdahlem, Germany. (Trial Tr. 751:1-20, July 16, 2010.) In that role, Almy commanded approximately 180 men in the Maintenance Directorate. (Trial Tr. 751:21-22, 753:7-11, July 16, 2010.) The three flights in the Maintenance Directorate under his command in the 606th Air Control Squadron deployed to Iraq in September 2004. His squadron was responsible for maintaining and controlling the airspace during the invasion of Fallujah, Iraq, and he was responsible for maintaining control over the vast majority of Iraqi airspace, including Kirkuk, as well as maintaining all satellite links and voice and data communications. (Trial Tr. 753:7-755:24, July 16, 2010.) While stationed at Balad Air Base, his flight experienced frequent mortar attacks "usually several times a week, if not daily." (Trial Tr. 756:1-2, July 16, 2010.)

After Almy completed his third deployment to Iraq in January 2005, someone began using the same computer Almy had used while deployed; that person searched Major Almy's private electronic mail message ("e-mail") files without his knowledge or permission. The search included a folder of Major Almy's personal e-mail messages,*fn7 sent to his friends and family members, and read messages, including at least one message to a man discussing homosexual conduct. (Trial Tr. 764:23-766:6-767:2, July 16, 2010.) Almy thought the privacy of his messages was protected; he was very knowledgeable about the military's policy regarding the privacy of e-mail accounts because of his responsibility for information systems. (Trial Tr. 772:20-773:4, 794:6-15, 796:6-798:4, July 16, 2010.) He knew, for example, that according to Air Force policy, e-mail accounts could not be searched unless authorized by proper legal authority or a squadron commander or higher in the military chain of command. (Trial Tr. 772:20-773:4, July 16, 2010.)

Almy only learned his private e-mail had been searched when he returned to Germany and his commanding officer confronted him with the messages, read him the Don't Ask, Don't Tell Act, and pressured him to admit he was homosexual. (Trial Tr. 764:23-766:6, 773:13-20, July 16, 2010.) At the end of the meeting, Almy was relieved of his duties, and his commanding officer informed the other officers in the squadron of this. (Trial Tr. 774:7-15, July 16, 2010.) Almy had attained one of the highest level security clearances available for military personnel, "top secret SCI*fn8 clearance;" approximately three months after Almy was relieved of his duties, his security clearance was suspended. (Trial Tr. 775:8-15, July 16, 2010.)

Initially, Almy contested his discharge, as he felt he had not violated the terms of the Don't Ask, Don't Tell Act: he had never told anyone in the military he was gay. (Trial Tr. 775:19-776:9, July 16, 2010.) Rather, Almy's understanding was that his discharge was based solely on the e-mail discovered on the computer in Iraq. (Trial Tr. 793:6-9, July 16, 2010.) Accordingly, Almy invoked his right to an administrative hearing and solicited letters of support from those who had worked with him in the Air Force. (Trial Tr. 775:19-776:9, 777:2-8, July 16, 2010.) Everyone he asked to write such a letter agreed to do so. (Trial Tr. 777:17-25, July 16, 2010.) Colonel Paul Trahan, US Army (Ret.), wrote: "My view is that Major Almy has been, and will continue to be an excellent officer. As a former Commander and Inspector General I am well aware of the specifics of the Homosexual Conduct Policy. To my knowledge, Major Almy is not in violation of any of the provisions of the policy. To the contrary, it appears that in prosecuting the case against Major Almy, the USAF may have violated the 'Don't Ask, Don't Tell Policy,' the Electronic Privacy Act and Presidential directives regarding the suspension of security clearances." (Trial Ex. 113 [Character Reference Letter from Col. Paul Trahan, U.S. Army (Ret.)].)

Captain Timothy Higgins wrote about Almy: "Of the four maintenance directorate chiefs I have worked with at the 606th, Major Almy is by far the finest. During his tenure as the [director of logistics], he had maintenance training at the highest levels seen to date . . . . His troops respected him because they believed he had their best interests at heart." (Trial Ex. 117 [Character Reference Letter from Timothy J. Higgins, Capt. USAF].)

Those who served under Almy wrote equally strong praise: "I can say without reservation that Maj. Almy was the best supervisor I have ever had." (Trial Ex. 120 [Character Reference Letter from Rahsul J. Freeman, 1st Lt., USAF]); "I was deployed with him during the NATO Exercise CLEAN HUNTER 2004. His leadership was key to our successful completion of the mission. He was well liked and respected by the enlisted personnel in the unit." (Trial Ex. 122 [Character Reference Letter from Leslie D. McElya, SMSgt, USAF (Ret.)].) Almy's commanding officer while his discharge proceedings were pending, Lt. Col. Jeffrey B. Kromer, wrote that he was convinced "the Air Force, its personnel, mission and tradition remains unchanged and unharmed despite his alleged [violations of the Don't Ask, Don't Tell Act]." (Trial Ex. 114.)

During the course of Almy's discharge proceedings, he was relieved of his command, but remained at Spangdahlem Air Base performing "ad hoc" duties. (Trial Tr. 810:18-811:1, 816:5-16 July 16, 2010.) Almy testified he observed the effect his abrupt removal from his duties had on his former unit: the maintenance, availability, and readiness of the equipment to meet the mission declined. (Trial Tr. 813:19-24, 815:2-18, July 16, 2010.) One officer in the 606th Air Control Squadron observed that the squadron "fell apart" after Major Almy was relieved of his duties, illustrating "how important Maj. Almy was[,] not only to the mission but to his troops." (Trial Ex. 121 [Character Reference Letter from Bryan M. Zollinger, 1st Lt. USAF, 606th Air Control Squadron].)

After sixteen months, Almy agreed to drop his request for an administrative hearing and to accept an honorable discharge. He testified his reasons for doing so were the risks of a less-than-honorable discharge would have had on his ability to obtain a civilian job and on his retirement benefits, as well as his own exhausted emotional state. (Trial Tr. 798:8-799:13, July 16, 2010.) Almy refused to sign his official discharge papers, however, because they listed the reason for discharge as admitted homosexuality. (See Trial Ex. 112; Trial Tr. 800:1-801:20, July 16, 2010.)

Major Almy received many awards and honors during his service in Air Force. For example, while serving at Tinker Air Force Base in the late 1990s with the Third Combat Communications Group, he was selected as "Officer of the Year," chosen as the top performer among his peers for "exemplary leadership, dedication to the mission, and going above and beyond the call of duty." (Trial Tr. 741:1-11, July 16, 2010.) In 2001, he was one of six Air Force officers chosen to attend the residential training program for officers at the Marine Corps Quantico headquarters. (Trial Tr. 744:7-745:20.) In 2005 he was awarded the Lt. General Leo Marquez Award, which is given to the Top Air Force Communications Officer serving in Europe. (Trial Tr. 760:8-761:1, July 16, 2010.) Although Almy had been relieved of command, during the pendency of the discharge proceedings, Colonel Goldfein, Almy's wing commander, recommended that Almy be promoted to lieutenant colonel. (Trial Tr. 816:19-818:1, July 16, 2010.)

Almy testified that if the Act were no longer in effect, he "wouldn't hesitate" to rejoin the Air Force. (Trial Tr. 827:3-5, July 16, 2010.) The Court found Almy a credible, candid, and forthright witness.

2. Joseph Rocha

Joseph Rocha enlisted in the United States Navy on April 27, 2004, his eighteenth birthday. (Trial Tr. 473:19-23, July 15, 2010.) His family, like Major Almy's, had a tradition of military service, and the September 11, 2001, attacks also motivated him to enlist. (Trial Tr. 474:5-24, July 15, 2010.) He wanted to be an officer in the United States Marine Corps, but was not admitted to the Naval Academy directly out of high school; so he hoped to enter Officer Training School through diligence as an enlisted man. (Trial Tr. 473:24-474:24, July 15, 2010.)

After successfully completing basic training, he was promoted to seaman apprentice and received further training in counter-terrorism and force protection. (Trial Tr. 475:7-476:5, July 15, 2010.) He then volunteered for deployment on a military mission to Bahrain. (Trial Tr. 476:6-12, July 15, 2010.) Once he arrived at the Naval Support base there, Rocha sought out the base's canine handler position because he wanted to specialize in becoming an explosive-device handler. (Trial Tr. 477:12-22, July 15, 2010.)

The canine group is a very elite and competitive unit, for which qualification is very difficult. (Trial Tr. 478:11-16, July 15, 2010.) Rocha volunteered his off-duty time to earn the qualifications to interview and be tested for a kennel-support assignment; during this time, his interactions with members of the canine unit were limited to one or two handlers on the night shift when he volunteered. (Trial Tr. 478:20-479:13, July 15, 2010.) Eventually, Rocha took and passed oral and written examinations with Chief Petty Officer Toussaint, the canine group's commanding officer; Rocha met the other qualifications and received an assignment in kennel support. (Trial Tr. 480:11-19, 481:4-9, July 15, 2010.) His duties were to ensure the dogs -- who were trained to sniff and detect explosives and explosive devices -- were clean, fed, medicated, and exercised. (Trial Tr. 481:10-17, July 15, 2010.)

At the same time, Rocha voluntarily participated in additional physical training exercises with members of the Marine Corps, such as martial arts and combat operations training, in the belief this eventually would improve his chances for admission to the Naval Academy. (Trial Tr. 482:16-483:6, July 15, 2010.) As Rocha aspired to become a Marine officer, after receiving permission through the Marine chain of command, Rocha began "more formal training," eventually earning martial arts, combat, and swimming qualifications. (Trial Tr. 482:21-483:12, July 15, 2010.)

Once assigned as kennel support to the canine unit and under Chief Petty Officer Toussaint's command, Rocha was hazed and harassed constantly, to an unconscionable degree and in shocking fashion. When the eighteen-year-old Rocha declined to participate in the unit's practice of visiting prostitutes, he was taunted, asked if he was a "faggot," and told to prove his heterosexuality by consorting with prostitutes. (Trial Tr. 486:18-487:2, 488:3-7, July 15, 2010.) Toussaint freely referred to him as "gay" to the others in the unit, and others in the unit referred to him in a similar fashion. (Trial Tr. 486:11-17, July 15, 2010.) When Rocha refused to answer the questions from Toussaint and others in the unit about his sexuality, "it became a frenzy," in his words, and his superiors in the canine unit would gather around him, simulate sexual positions, and ask if the U.S. Marine Corps soldiers ...


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