FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOG CABIN REPUBLICANS, a non-
profit corporation,
Plaintiff-Appellee, No. 10-56634
v.
D.C. No.
2:04-cv-08425-
UNITED STATES OF AMERICA; LEON
PANETTA, Secretary of Defense, in VAP-E
his official capacity,
Defendants-Appellants.
LOG CABIN REPUBLICANS, a non-
profit corporation,
No. 10-56813
Plaintiff-Appellant,
D.C. No.
v.
2:04-cv-08425-
UNITED STATES OF AMERICA; LEON VAP-E
PANETTA, Secretary of Defense, in
OPINION
his official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
September 1, 2011—Pasadena, California
Filed September 29, 2011
Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain, and
Barry G. Silverman, Circuit Judges.
18571
18572 LOG CABIN REPUBLICANS v. UNITED STATES
Per Curiam Opinion;
Concurrence by Judge O’Scannlain
LOG CABIN REPUBLICANS v. UNITED STATES 18573
COUNSEL
Henry C. Whitaker, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, Washington, D.C.,
argued the cause and filed the briefs for the defendants-
appellants/defendants-appellees. With him on the briefs were
Tony West, Assistant Attorney General, André Birotte Jr.,
United States Attorney, and Anthony J. Steinmeyer and
August E. Flentje, Attorneys, Appellate Staff, Civil Division,
United States Department of Justice, Washington, D.C.
Dan Woods, White & Case LLP, Los Angeles, California,
argued the cause and filed a brief for the plaintiff-
appellee/plaintiff-appellant. With him on the brief was Earle
Miller, Aaron A. Kahn, and Devon A. Myers, White & Case
LLP, Los Angeles, California.
18574 LOG CABIN REPUBLICANS v. UNITED STATES
OPINION
PER CURIAM:
We are called upon to decide whether the congressionally
enacted “Don’t Ask, Don’t Tell” policy respecting homosex-
ual conduct in the military is unconstitutional on its face.
I
A
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person of the same sex. 10 U.S.C. § 654(b) (repealed); see,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 implement-
ing regulations as facially unconstitutional under the due pro-
cess 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-
LOG CABIN REPUBLICANS v. UNITED STATES 18575
tions to anyone. The United States appealed; Log Cabin cross-
appealed the dismissal of its equal protection claim.
B
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 Sec-
retary 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 mili-
tary 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 Sep-
tember 20, 2011.
II
A
[1] 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 live case
or controversy at the time that” a reviewing federal court
decides the case. Id.
[2] Applying that limitation, the Supreme Court and our
court have repeatedly held that a case is moot when the chal-
18576 LOG CABIN REPUBLICANS v. UNITED STATES
lenged statute is repealed, expires, or is amended to remove
the challenged language. In determining whether a case has
become moot on appeal, the appellate court “review[s] the
judgment below in light of the . . . statute as it now stands,
not as it . . . did” before the district court. Hall v. Beals, 396
U.S. 45, 48 (1969) (per curiam); see Burke, 479 U.S. at 363.
In Hall v. Beals, for example, the Supreme Court deemed
moot a challenge to a six-month residency requirement
imposed by Colorado for eligibility to vote in the 1968 presi-
dential election. 396 U.S. at 46-48. After the district court
rejected the challenge and the Supreme Court noted probable
jurisdiction, the Colorado legislature reduced the residency
requirement to two months, which the plaintiffs would have
met at the time of the 1968 election. Id. at 47-48. The case
was moot because, “under the statute as . . . written” when the
Supreme Court reviewed the district court’s judgment, “the
appellants could have voted in the 1968 presidential election.”
Id. at 48. Similarly, in United States Department of the Trea-
sury v. Galioto, after the Supreme Court had noted probable
jurisdiction to review a ruling that federal firearms legislation
unconstitutionally singled out mental patients, the case
became moot because Congress amended the statute to
remove the challenged language. 477 U.S. 556, 559-60
(1986). And in Burke v. Barnes, where several congressmen
challenged the President’s attempt to “pocket-veto” a bill, the
Supreme Court deemed the case moot because the bill expired
by its own terms before the Court could rule on the case. 479
U.S. at 363. As in cases dealing with repealed legislation, the
Court “analyze[d] th[e] case as if [the plaintiffs] had origi-
nally sought to litigate the validity of a statute which by its
terms had already expired.” See id.
[3] Following the Court’s lead, we have routinely deemed
cases moot where “a new law is enacted during the pendency
of an appeal and resolves the parties’ dispute.” Qwest Corp.
v. City of Surprise, 434 F.3d 1176, 1181 (9th Cir. 2006)
(Qwest’s challenge to ordinances rendered moot by amend-
LOG CABIN REPUBLICANS v. UNITED STATES 18577
ment exempting Qwest from ordinances); see Chem. Produc-
ers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875-78 (9th
Cir. 2006) (case moot where amendment eliminated chal-
lenged part of pesticide registration law); Martinez v. Wilson,
32 F.3d 1415, 1419-20 (9th Cir. 1994) (case moot where, after
injunction was issued, statute was amended to eliminate chal-
lenged factors used by the State of California in distributing
funds under the Older Americans Act). Under these prece-
dents, when a statutory repeal or amendment gives a plaintiff
“everything [it] hoped to achieve” by its lawsuit, the contro-
versy is moot. Helliker, 463 F.3d at 876.
[4] This suit became moot when the repeal of section 654
took effect on September 20. If Log Cabin filed suit today
seeking a declaration that section 654 is unconstitutional or an
injunction against its application (or both), there would be no
Article III controversy because there is no section 654. The
repeal, in short, gave Log Cabin “everything” its complaint
“hoped to achieve.” Helliker, 463 F.3d at 876. There is no
longer “a present, live controversy of the kind that must exist”
for us to reach the merits. Hall, 396 U.S. at 48.
B
Log Cabin concedes that “the injunctive relief awarded by
the district court [has] become moot” due to the repeal, but
contends that its quest for declaratory relief is live under
either of two exceptions to mootness.
We are not persuaded. When a statutory repeal or amend-
ment extinguishes a controversy, the case is moot. There is no
exception for declaratory relief. See Native Vill. of Noatak v.
Blatchford, 38 F.3d 1505, 1514 (9th Cir. 1994) (“Declaratory
relief is unavailable where [a] claim is otherwise moot . . . .”);
Pub. Utils. Comm’n of State of Cal. v. FERC, 100 F.3d 1451,
1459 (9th Cir. 1996) (same).
In any event, no exception to mootness applies here. Log
Cabin notes that generally “a defendant’s voluntary cessation
18578 LOG CABIN REPUBLICANS v. UNITED STATES
of a challenged practice does not deprive a federal court of its
power to determine the legality of the practice.” City of Mes-
quite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). But
voluntary cessation is different from a statutory amendment or
repeal. Repeal is “usually enough to render a case moot, even
if the legislature possesses the power to reenact the statute
after the lawsuit is dismissed.” Helliker, 463 F.3d at 878.
Cases rejecting mootness in such circumstances “are rare and
typically involve situations where it is virtually certain that
the repealed law will be reenacted.” Id. (emphases omitted);
see, e.g., City of Mesquite, 455 U.S. at 289 & n.11 (City
admitted that it intended to reenact “precisely the same provi-
sion” that it had repealed after the district court’s adverse
judgment); Ballen v. City of Redmond, 466 F.3d 736, 741 (9th
Cir. 2006) (statutory amendment “adopted only as an interim
regulation in response to the district court’s summary judg-
ment ruling”); Coral Constr. Co. v. King Cnty., 941 F.2d 910,
928 (9th Cir. 1991) (district court had upheld the challenged
ordinance, allowing the County to “reenact its earlier ordi-
nance” ”without the spectre of a prior finding of unconstitu-
tionality”).
We cannot say with “virtual[ ] certain[ty],” Helliker, 463
F.3d at 878, that the Congress that passed the Repeal Act—or
a future Congress whose composition, agenda, and circum-
stances we cannot know—will reenact Don’t Ask, Don’t Tell.
We can only speculate, and our speculation cannot breathe
life into this case.
A second exception to mootness applies when a party faces
“collateral consequences” from a challenged statute even
when the statute is repealed. Log Cabin cites several benefits
that discharged service members may have lost as a result of
their separation. But because these missed benefits are not
legal penalties from past conduct, they do not fall within this
exception. Qwest, 434 F.3d at 1182; Pub. Utils. Comm’n, 100
F.3d at 1461 (“the collateral consequences must be legal”).
LOG CABIN REPUBLICANS v. UNITED STATES 18579
III
Having determined that this case is moot, we must “direct
the entry of such appropriate judgment, decree, or order, or
require such further proceedings to be had as may be just
under the circumstances.” 28 U.S.C. § 2106.
[5] The “established” practice when a civil suit becomes
moot on appeal is to vacate the district court’s judgment and
remand for dismissal of the complaint. See United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950). Vacatur ensures
that “those who have been prevented from obtaining the
review to which they are entitled [are] not . . . treated as if
there had been a review.” Id. It “prevent[s] an unreviewable
decision ‘from spawning any legal consequences,’ so that no
party is harmed by what [the Supreme Court has] called a
‘preliminary’ adjudication.” Camreta v. Greene, 131 S. Ct.
2020, 2035 (2011) (quoting Munsingwear, 340 U.S. at 40-41).
To be sure, in the rare situation “when mootness [does] not
deprive the appealing party of any review to which [it] was
entitled,” reviewing courts have left lower court decisions
intact. Camreta, 131 S. Ct. at 2035 n.10. Vacatur thus may be
unwarranted when the losing party did not file an appeal or
settled the case. See id. (citing Karcher v. May, 484 U.S. 72,
83 (1987), and U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 25 (1994)). In each circumstance, the
losing party “voluntarily forfeit[s] his legal remedy by the
ordinary process[ ] of appeal” and thus “surrender[s] his claim
to the equitable remedy of vacatur.” U.S. Bancorp, 513 U.S.
at 25.
[6] That is not the situation before us. The United States
did not forfeit the appellate review to which it was entitled.
After the district court entered its judgment and injunction,
the United States appealed promptly, moved our court to stay
the district court order, filed two merits briefs disputing the
judgment and relief ordered, moved to reinstate the stay of the
18580 LOG CABIN REPUBLICANS v. UNITED STATES
injunction after this court briefly lifted it, filed a letter brief
reiterating its arguments against the district court’s judgment
and injunction, and at oral argument made clear that it still
advances all of its arguments against the district court’s judg-
ment and injunction. Mootness has thus deprived the United
States of the review to which it is entitled. Vacatur is proper.
See Arizonans for Official English v. Arizona, 520 U.S. 43, 74
(1997) (holding that vacatur was proper because, “when the
mooting event occurred,” the Arizona Attorney General was
pursuing his “right to present argument on appeal”).
[7] We therefore vacate the judgment of the district court.
Burke, 479 U.S. at 365 (vacating and remanding to dismiss
complaint); Helliker, 463 F.3d at 880 (same); Martinez, 32
F.3d at 1420. Because Log Cabin has stated its intention to
use the district court’s judgment collaterally, we will be clear:
It may not. Nor may its members or 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, pre-
clusive, or binding effect. The repeal of Don’t Ask, Don’t Tell
provides Log Cabin with all it sought and may have had
standing to obtain. (We assume without deciding that Log
Cabin had standing to seek a declaration that section 654 is
unconstitutional and an injunction barring the United States
from applying it to Log Cabin’s members. See Arizonans for
Official English, 520 U.S. at 66-67 (court may assume with-
out deciding that standing exists in order to analyze moot-
ness).) Because the case is moot and the United States may
not challenge further the district court’s rulings and findings,
giving those rulings and findings any effect would wrongly
harm the United States.1
1
In light of our disposition, we deny the United States’ Suggestion of
Mootness and Motion to Vacate the District Court Judgment filed Septem-
ber 20, 2011.
LOG CABIN REPUBLICANS v. UNITED STATES 18581
On remand, the district court will dismiss the complaint
forthwith.
VACATED AND REMANDED WITH DIRECTIONS TO
DISMISS.
O’SCANNLAIN, Circuit Judge, concurring specially:
I fully concur in the court’s opinion. The repeal of Don’t
Ask, Don’t Tell has mooted this case, and our opinion prop-
erly vacates the district court’s judgment, injunction, rulings,
and findings.
I write separately because our inability to reach the merits
may leave uncertainty about the role Lawrence v. Texas, 539
U.S. 558 (2003), may have in substantive due process chal-
lenges. Although Congress spared us the need to reach the
merits in this case, other such challenges will come to the
courts. Because “guideposts for responsible decisionmaking”
on matters of substantive due process are “scarce and open
ended,” Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992), I think it useful to explain how courts should
approach the application of Lawrence in appropriate cases.
I
The Supreme Court has emphasized its “reluctan[ce] to
expand the concept of substantive due process.” Collins, 503
U.S. at 125. To confine that concept to its proper bounds, the
Court has developed an “established method” of substantive
due process analysis that comprises two primary features.
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
First, the Court requires “a ‘careful description’ of the
asserted fundamental liberty interest.” Glucksberg, 521 U.S.
at 721; see Reno v. Flores, 507 U.S. 292, 302 (1993); Collins,
18582 LOG CABIN REPUBLICANS v. UNITED STATES
503 U.S. at 125. In crafting such descriptions, the Court has
eschewed breadth and generality in favor of narrowness, deli-
cacy, and precision.
In Washington v. Glucksberg, for example, the Court
framed the issue before it as “whether the ‘liberty’ specially
protected by the Due Process Clause includes a right to com-
mit suicide which itself includes a right to assistance in doing
so.” 521 U.S. at 723. The Court rejected capacious formula-
tions of the asserted right, such as “the right to choose a
humane, dignified death” or “the liberty to shape death.” Id.
at 722 (internal quotation marks omitted). Similarly, in Cru-
zan v. Director, Missouri Department of Health, the Court
formulated the interest at stake as a “right to refuse lifesaving
hydration and nutrition,” 497 U.S. 261, 279 (1990), rather
than as a “right to die.” So too in Reno v. Flores, where the
Court described the interest at issue as “the alleged right of a
child who has no available parent, close relative, or legal
guardian, and for whom the government is responsible, to be
placed in the custody of a willing-and-able private custodian
rather than of a government-operated or government-selected
child-care institution.” 507 U.S. at 302. Again, the Court
rejected more general articulations of the alleged right, such
as “the ‘freedom from physical restraint’ ” and “the right to
come and go at will.” Id.
Second, the Court examines whether that carefully
described right is “deeply rooted” in our Nation’s history,
legal traditions, and practices or in supporting case law.
Glucksberg, 521 U.S. at 721 (internal quotation marks omit-
ted); see Collins, 503 U.S. at 126-29 (examining “the text
[and] history of the Due Process Clause”); Cruzan, 497 U.S.
at 269-77 (examining the common law and contemporary case
law); see also Flores, 507 U.S. at 303 (observing that no court
had ever held that there was a constitutional right of the sort
alleged). In Glucksberg, for example, the Court examined
those sources for evidence of “a right to commit suicide with
another’s assistance.” 521 U.S. at 724; see id. at 710-19,
LOG CABIN REPUBLICANS v. UNITED STATES 18583
723-28. Coming up empty-handed, the Court concluded that
this “asserted ‘right’ . . . is not a fundamental liberty interest
protected by the Due Process Clause.” Id. at 728.
The Court has imposed these dual limitations on substan-
tive due process analysis to preserve the judiciary’s proper
role in the constitutional structure. “[E]xtending constitutional
protection to an asserted right or liberty interest . . . to a great
extent[ ] place[s] the matter outside the arena of public debate
and legislative action.” Glucksberg, 521 U.S. at 720. When-
ever the Court expands the concept of substantive due pro-
cess, moreover, it risks “subtly transform[ing]” the liberty
protected by the due process clause to “the policy preferences
of the Members of th[e] Court.” Id.
In short, when confronted with assertions of new funda-
mental rights, rather than invite innovation the Court has
counseled caution. The Court has developed a trusted method
reflecting that caution. And while the Court has on occasion
departed from its established method, it has not licensed lower
courts to do so. See Witt v. Dep’t of Air Force, 548 F.3d 1264,
1273 (9th Cir. 2008) (O’Scannlain, J., dissenting from denial
of rehearing en banc). Most important, when a right is not
rooted in our constitutional text, traditions, or history, our
authority as judges is at its end. We must then leave the task
of identifying and protecting new rights where the Constitu-
tion leaves it—with the political branches and the people. See
Glucksberg, 521 U.S. at 720.
II
A
Against this established legal background, the district court
in this case reasoned as follows: Fundamental rights trigger
heightened judicial scrutiny. Log Cabin Republicans v. United
States, 716 F. Supp. 2d 884, 911 (C.D. Cal. 2010). Lawrence
v. Texas “recogniz[ed] the fundamental right to ‘an autonomy
18584 LOG CABIN REPUBLICANS v. UNITED STATES
of self that includes freedom of thought, belief, expression,
and certain intimate conduct.’ ” Id. (quoting 539 U.S. at 562).
Log Cabin’s challenge to Don’t Ask, Don’t Tell implicates
that same fundamental right. Id. Therefore, Don’t Ask, Don’t
Tell must withstand heightened scrutiny. Id.
This is not the “established method” of substantive due pro-
cess analysis. Indeed, this analysis was tantamount to a con-
clusion that the Supreme Court in Lawrence rejected its own
settled approach and established a sweeping fundamental
right triggering heightened scrutiny regardless of context. On
that unsupported foundation, the district court subjected 10
U.S.C. § 654 to heightened scrutiny.
The Supreme Court’s cases instruct that departures from
the constitutional text must be narrow, carefully considered,
and grounded in the Nation’s history, traditions, or practices.
See supra Part I. The district court’s decision followed none
of those instructions. Departing from settled practice was par-
ticularly improper in this case, which involved a facial consti-
tutional challenge to a federal statute. Judging the
constitutionality of an Act of Congress is “the gravest and
most delicate duty” that federal courts are called upon to per-
form. Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (internal
quotation marks omitted). Proper respect for Supreme Court
precedents, for a considered congressional policy, and for the
traditions and history of our country required the district court
to apply the tried and trusted method of substantive due pro-
cess analysis.
B
Log Cabin’s due process challenge required the district
court to begin by “carefully formulating the interest at stake.”
Glucksberg, 521 U.S. at 722. Because Log Cabin alleged that
10 U.S.C. § 654 violates substantive due process, this first
step calls for examining the statutory language, see Glucks-
LOG CABIN REPUBLICANS v. UNITED STATES 18585
berg, 521 U.S. at 723.1 Taking close account of that language,
a substantive due process challenge to section 654 presented
the question whether the due process clause protects the right
of a member of the armed forces to do any of the following
without being discharged: (1) to engage in, to attempt to
engage in, or to solicit another to engage in homosexual acts
1
As relevant, section 654 provided:
A member of the armed forces shall be separated from the armed
forces under regulations prescribed by the Secretary of Defense
if one or more of the following findings is made and approved in
accordance with procedures set forth in such regulations:
(1) That the member has engaged in, attempted to engage in,
or solicited another to engage in a homosexual act or acts
unless there are further findings, made and approved in
accordance with procedures set forth in such regulations, that
the member has demonstrated that—
(A) such conduct is a departure from the member’s usual
and customary behavior;
(B) such conduct, under all the circumstances, is unlikely
to recur;
(C) such conduct was not accomplished by use of force,
coercion, or intimidation;
(D) under the particular circumstances of the case, the
member’s continued presence in the armed forces is con-
sistent with the interests of the armed forces in proper dis-
cipline, good order, and morale; and
(E) the member does not have a propensity or intent to
engage in homosexual acts.
(2) That the member has stated that he or she is a homosex-
ual or bisexual, or words to that effect, unless there is a fur-
ther finding, made and approved in accordance with
procedures set forth in the regulations, that the member has
demonstrated that he or she is not a person who engages in,
attempts to engage in, has a propensity to engage in, or
intends to engage in homosexual acts.
(3) That the member has married or attempted to marry a
person known to be of the same biological sex.
10 U.S.C. § 654(b).
18586 LOG CABIN REPUBLICANS v. UNITED STATES
without demonstrating that such conduct is (to simplify for
brevity) unusual for the service member, uncoerced, and non-
disruptive to the military; (2) to state that he is a homosexual
or bisexual and also to engage in, to attempt to engage in, to
have the propensity to engage in, or to intend to engage in
homosexual acts; or (3) to marry or to attempt to marry a per-
son known to be of the same biological sex. Put simply, the
substantive due process question raised by Don’t Ask, Don’t
Tell was whether a service member possesses a right to serve
in the military when he is known to engage in homosexual
conduct or when he states that he is a homosexual.
Having carefully described the asserted right, the next
question is whether the right is manifested in our Nation’s his-
tory, traditions, or practices. A trusted guide for this analysis
is past decisions of the courts, which have repeatedly
approved the very actions that Log Cabin contends are uncon-
stitutional. As our court recognized in 1997, “[f]or nearly
twenty years we have upheld the constitutionality of the mili-
tary’s authority to discharge service members who engage in
homosexual acts.” Philips v. Perry, 106 F.3d 1420, 1425 (9th
Cir. 1997); see id. at 1425-27 (summarizing cases). Affirming
a discharge under section 654 in Philips, we observed that
“this court has consistently held that regulations of the nature
at issue here . . . are constitutional” and noted that “[e]very
other circuit to address this issue is in accord, upholding
against constitutional challenge the authority of the military to
discharge those members who engage in homosexual con-
duct.” Id. at 1427 & n.12 (emphasis omitted) (citing decisions
of the Second, Tenth, D.C., and Federal Circuits); see, e.g.,
Thomasson v. Perry, 80 F.3d 915, 927-31, 934 (4th Cir. 1996)
(en banc); Dronenburg v. Zech, 741 F.2d 1388, 1397-98 (D.C.
Cir. 1984).
Courts have rejected such challenges on equal protection as
well as due process grounds. See, e.g., Able v. United States,
155 F.3d 628, 635-36 (2d Cir. 1998); Richenberg v. Perry, 97
F.3d 256, 260-62 (8th Cir. 1996); Steffan v. Perry, 41 F.3d
LOG CABIN REPUBLICANS v. UNITED STATES 18587
677, 686-87 (D.C. Cir. 1994) (en banc); Ben-Shalom v.
Marsh, 881 F.2d 454, 464-65 (7th Cir. 1989). Such equal pro-
tection decisions are instructive here: The mere focus on
equal protection rather than on due process in such cases con-
firms that the right asserted here has not been viewed as part
of the liberty protected by due process. See Flores, 507 U.S.
at 303 (“The mere novelty of . . . a claim is reason enough to
doubt that ‘substantive due process’ sustains it.”). Moreover,
“substantive due process and equal protection doctrine are
intertwined for purposes of equal protection analyses of fed-
eral action” because the Fifth Amendment’s equal protection
guarantee is grounded in its due process clause. Philips, 106
F.3d at 1427 (internal quotation marks omitted).
These decisions, all of them recent by historical standards,
span the Nation and belie any claim that the right asserted by
Log Cabin is deeply rooted in our history or traditions.
Indeed, “the alleged right certainly cannot be considered so
rooted in the traditions and conscience of our people as to be
ranked as fundamental” when no court had held (until the dis-
trict court did here) that there is such a fundamental constitu-
tional right. Flores, 507 U.S. at 303 (internal quotation marks
omitted).
C
The district court in this case never contended that the right
asserted by Log Cabin has deep roots in our history, tradition,
or practices, nor in a line of cases stretching an appreciable
distance into the past. Rather, the linchpin for the district
court’s ruling was the Supreme Court’s decision just eight
years ago in Lawrence.
Lawrence held that the liberty interest protected by the due
process clause prohibits states from criminalizing private
homosexual conduct by consenting adults. 539 U.S. at 578.
Nothing in Lawrence establishes a general fundamental right
to engage in homosexual conduct. See, e.g., Muth v. Frank,
18588 LOG CABIN REPUBLICANS v. UNITED STATES
412 F.3d 808, 817 (7th Cir. 2005) (“Lawrence . . . did not
announce . . . a fundamental right, protected by the Constitu-
tion, for adults to engage in all manner of consensual sexual
conduct . . . .”); Lofton v. Sec’y of the Dep’t of Children &
Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) (“[I]t is a
strained and ultimately incorrect reading of Lawrence to inter-
pret it to announce a new fundamental right.”).
Indeed, far from establishing a broad interest, the Supreme
Court in Lawrence struck down with marksman-like precision
an outlier criminal statute and expressly emphasized the limi-
tations of the liberty interest guiding its holding:
The present case does not involve minors. It does not
involve persons who might be injured or coerced or
who are situated in relationships where consent
might not easily be refused. It does not involve pub-
lic conduct or prostitution. It does not involve
whether the government must give formal recogni-
tion to any relationship that homosexual persons
seek to enter.
539 U.S. at 578; see Lofton, 358 F.3d at 815 (“Lawrence’s
holding was that substantive due process does not permit a
state to impose a criminal prohibition on private consensual
homosexual conduct.”). The case did not address the military
context, did not establish a right to continued employment for
those engaged in proscribed conduct, and did not address how
homosexual conduct might be addressed outside a criminal
context. The opinion does not prescribe heightened scrutiny.
These limitations make clear that Lawrence does not establish
that a member of the armed forces has a constitutionally pro-
tected right to engage in homosexual acts or to state that he
or she is a homosexual while continuing to serve in the mili-
tary.
To be sure, Lawrence contained broad language on per-
sonal autonomy. See, e.g., 539 U.S. at 562 (“Liberty protects
LOG CABIN REPUBLICANS v. UNITED STATES 18589
the person from unwarranted government intrusions into a
dwelling or other private places. . . . Liberty presumes an
autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct.”). But this broad
language does not constitute “the careful[ ] formulation” of
“the interest at stake” in this case and cannot, under Supreme
Court precedent, be “transmuted” into the new fundamental
right claimed by Log Cabin. Glucksberg, 521 U.S. at 722,
726. In the end, careful application of the Supreme Court’s
“established method” in substantive due process cases shows
that Lawrence did not establish any fundamental right—let
alone any right relevant to the Don’t Ask, Don’t Tell policy
in the military.
D
Because Lawrence does not change the scrutiny applicable
to policies regarding personnel decisions in the military, sec-
tion 654 should have been upheld if it was “rationally related
to legitimate government interests.” Glucksberg, 521 U.S. at
728. When enacting section 654, Congress put forth the legiti-
mate interests of military capability and success (among oth-
ers), see, e.g., 10 U.S.C. § 654(a)(6)-(7), (13)-(15), and
Congress could have rationally concluded that the statute
served that interest, as reflected in the considerable evidence
before it, see Philips, 106 F.3d at 1422-23; Thomasson, 80
F.3d at 922-23. If we had been able to reach the merits in this
case, I would have been obliged to vote to reverse.2
2
So too for the district court’s holding that Don’t Ask, Don’t Tell on its
face violates the First Amendment. I do not address this ruling at length
because it was little more than a follow-on to the district court’s due pro-
cess ruling. The district court’s substantive due process analysis focused
on section 654(b)(1), which concerns homosexual acts, whereas its First
Amendment analysis looked to section 654(b)(2), which concerns state-
ments made by service members. The district court concluded that if the
“acts prong” in section 654(b)(1) violates substantive due process, then the
limitation on speech in section 654(b)(2) “necessarily fails as well” under
the First Amendment because that provision limits speech in support of an
18590 LOG CABIN REPUBLICANS v. UNITED STATES
III
“[J]udicial self-restraint requires” federal courts “to exer-
cise the utmost care whenever we are asked to break new
ground” in the field of substantive due process. Flores, 507
U.S. at 302 (internal quotation marks omitted). This note of
caution is especially important in cases such as this one,
where moral and personal passions run high and where there
is great risk that “the liberty protected by the Due Process
Clause [will] be subtly transformed into the policy prefer-
ences” of unelected judges. Glucksberg, 521 U.S. at 720. The
Constitution entrusts to “public debate and legislative action”
the task of identifying and protecting rights that are not rooted
in our constitutional text, history, or traditions. Id. This case
involves precisely such a right, and legislative action achieved
the goals pursued in this lawsuit. That was the proper resolu-
tion: although Log Cabin had every right to bring this suit,
only Congress—not the courts—had the authority under our
Constitution to vindicate Log Cabin’s efforts here.
unconstitutional objective. 716 F. Supp. 2d at 926. As already explained,
in my view the substantive due process challenge could not have suc-
ceeded here.
Moreover, the district court’s ruling squarely conflicted with our own
decision just fourteen years ago in Holmes v. California Army National
Guard, which rejected the argument that section 654(b)(2) violates the
First Amendment. 124 F.3d 1126, 1136 (9th Cir. 1997). The district court
believed that Holmes’s “foundations . . . all have been undermined by
Lawrence,” 716 F. Supp. 2d at 926, even though Lawrence did not involve
the First Amendment and did not even transform the doctrine it did
involve (due process). Lawrence could hardly be taken to undermine the
established principle that the First Amendment does not prohibit the use
of speech as evidence of the facts admitted. See Holmes, 124 F.3d at 1136.
Because section 654(b)(1) has a plainly legitimate sweep, section
654(b)(2) may constitutionally be used to identify those within that sweep.
See Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 n.6 (2008) (First Amendment facial challenge requires a showing that
“a substantial number of [the challenged statute’s] applications are uncon-
stitutional, judged in relation to the statute’s plainly legitimate sweep”)
(internal quotation marks omitted).
LOG CABIN REPUBLICANS v. UNITED STATES 18591
In this highly charged area, we constitutionally inferior
courts should be careful to apply established law. Failure to
do so begets the very errors that plagued this case. That fail-
ure culminated in a ruling that invalidated a considered con-
gressional policy and imposed a wholly novel view of
constitutional liberty on the entire United States. The
Supreme Court’s cases tell us to exercise greater care, cau-
tion, and humility than that. Indeed, our constitutional system
demands more respect than that. When judges sacrifice the
rule of law to find rights they favor, I fear the people may one
day find that their new rights, once proclaimed so boldly,
have disappeared because there is no longer a rule of law to
protect them.