Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding D.C. No. 2:04-cv-08425-VAP-E
D.C. No. 2:04-cv-08425-VAP-E
Argued and Submitted September 1, 2011-Pasadena, California
Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain, and Barry G. Silverman, Circuit Judges.
Concurrence by Judge O'Scannlain
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 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acts, stated that he is a homosexual, or married or attempted to marry a person of the same sex. 10 U.S.C. § 654(b) (repealed); see, e.g., Dep't of Def.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 v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) (upholding section 654 against a facial equal protection challenge), but allowed the due process and First Amendment challenges to proceed to trial.
After a bench trial, in October 2010 the district court ruled that section 654 on its face violates due process and the First Amendment. The court permanently enjoined the United States from applying section 654 and its implementing regula- tions to anyone. The United States appealed; Log Cabin cross-appealed the dismissal of its equal protection claim.
While the appeal was pending, Congress enacted the Don't Ask, Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010) ("Repeal Act"). That statute provides that section 654 would be repealed 60 days after: (1) the Secretary of Defense received a report determining the impact of repealing section 654 and recommending any necessary changes to military policy, and (2) the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff certified that they had considered the report's recommendations and were prepared to implement the repeal consistent with military readiness, military effectiveness, and unit cohesion. Repeal Act § 2(b). The Repeal Act left section 654 in effect until the prerequisites to repeal were satisfied and 60 days had then passed.
The report was issued November 30, 2010, and certification occurred July 21, 2011. Section 654 was thus repealed September 20, 2011.
 Because section 654 has now been repealed, we must determine whether this case is moot. "[I]t is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment" is under review. Burke v. Barnes, 479 U.S. 361, 363 (1987). Article III of the United States Constitution "requires that there be a ...