Editing Don't ask, don't tell (section)

===''Log Cabin Republicans v. United States of America''===
In 2010, a lawsuit filed in 2004 by the [[Log Cabin Republicans]] (LCR), the nation's largest Republican gay organization, went to trial.<ref name="dadt722">{{cite web|last=Garcia |first=Michelle |title=Key DADT Repeal Advocate Testifies |publisher=Advocate.com |date=July 22, 2010 |url=http://advocate.com/News/Daily_News/2010/07/22/Key_DADT_Repeal_Advocate_Testifies_in_Court/ |access-date=July 22, 2010 |url-status=dead |archive-url=https://web.archive.org/web/20100724091456/http://www.advocate.com/News/Daily_News/2010/07/22/Key_DADT_Repeal_Advocate_Testifies_in_Court/ |archive-date=July 24, 2010  }}</ref> Challenging the constitutionality of DADT, the plaintiffs stated that the policy violates the rights of gay military members to free speech, due process and open association. The government argued that DADT was necessary to advance a legitimate governmental interest.<ref>Law.com: [https://www.law.com/almID/1202463512493/ Constitutional Challenge to 'Don't Ask, Don't Tell' Reaches Trial]</ref> Plaintiffs introduced statements by President [[Barack Obama]], from prepared remarks, that DADT "doesn't contribute to our national security", "weakens our national security", and that reversal is "essential for our national security". According to plaintiffs, these statements alone satisfied their burden of proof on the due process claims.<ref>{{cite web |title=In the United States Court of Appeals for the Ninth Circuit |date=March 28, 2011 |url=http://cdn.ca9.uscourts.gov/datastore/general/2011/05/10/Brief.pdf |archive-url=https://web.archive.org/web/20161227100543/http://cdn.ca9.uscourts.gov/datastore/general/2011/05/10/Brief.pdf |archive-date=2016-12-27 |url-status=live |access-date=March 16, 2021}}</ref>

On September 9, 2010, Judge [[Virginia A. Phillips]] ruled in ''[[Log Cabin Republicans v. United States of America]]'' that the ban on service by openly gay service members was an unconstitutional violation of the [[First Amendment to the United States Constitution|First]] and [[Fifth Amendment to the United States Constitution|Fifth Amendments]].<ref>{{cite news|url=https://www.google.com/hostednews/ap/article/ALeqM5jIWJ1V2EsAQ8O7sPsyfXG0OAQTBwD9I56TQ82 |archive-url=https://web.archive.org/web/20100913034403/http://www.google.com/hostednews/ap/article/ALeqM5jIWJ1V2EsAQ8O7sPsyfXG0OAQTBwD9I56TQ82 |url-status=dead |archive-date=September 13, 2010 |title=US judge: 'Don't ask, don't tell' unconstitutional |agency=Associated Press |date=September 10, 2010}}</ref><ref>{{cite news|url=http://latimesblogs.latimes.com/lanow/2010/09/federal-judge-declares-us-military-ban-on-openly-gay-service-members-unconstitutional-.html |title=Judge declares U.S. military's 'don't ask, don't tell' policy openly banning gay service members unconstitutional |work=Los Angeles Times |date=September 9, 2010 |author=Phil Willon}}</ref> On October 12, 2010, she granted an immediate worldwide injunction prohibiting the Department of Defense from enforcing the "Don't Ask Don't Tell" policy and ordered the military to suspend and discontinue any investigation or discharge, separation, or other proceedings based on it.<ref name="autogenerated1">{{cite news|url=http://news.blogs.cnn.com/2010/10/12/judge-orders-military-to-stop-enforcing-dont-ask-dont-tell/?hpt=T2|title=Judge orders military to stop enforcing don't ask, don't tell|publisher=CNN|access-date=October 13, 2010|date=October 12, 2010|archive-date=February 24, 2021|archive-url=https://web.archive.org/web/20210224211709/https://news.blogs.cnn.com/2010/10/12/judge-orders-military-to-stop-enforcing-dont-ask-dont-tell/?hpt=T2|url-status=dead}}</ref><ref>{{cite news|url=https://www.nytimes.com/2010/10/13/us/13military.html|title=Judge Orders U.S. Military to Stop 'Don't Ask, Don't Tell' |date=October 12, 2010|work=The New York Times|first=John|last=Schwartz|access-date=December 29, 2012}}</ref> The Department of Justice appealed her decision and requested a stay of her injunction,<ref name="stay">{{cite news| url=http://www.cnn.com/2010/US/10/14/military.gay/index.html |publisher=CNN | title=Justice department seeks stay of judge's 'don't-ask-don't-tell' ruling | date=October 15, 2010}}</ref> which Phillips denied but which the Ninth Circuit Court of Appeals granted on October 20<ref>{{cite news|url=http://www.cnn.com/2010/US/10/20/dont.ask.dont.tell/index.html |title=Appeals court delays injunction against 'don't ask, don't tell' |publisher=CNN |date=October 19, 2010 |access-date=October 23, 2010}}</ref><ref>{{cite journal|url=http://www.csmonitor.com/USA/Justice/2010/1020/Don-t-ask-don-t-tell-back-in-force-after-appeals-court-issues-stay|title='Don't ask, don't tell' back in force after appeals court issues stay|journal=The Christian Science Monitor|date=October 21, 2010}}</ref> and stayed pending appeal on November 1.<ref>{{cite news |url=https://www.nytimes.com/2010/11/02/us/02military.html |archive-url=https://ghostarchive.org/archive/20220101/https://www.nytimes.com/2010/11/02/us/02military.html |archive-date=2022-01-01 |url-access=limited |title=Military Policy on Gays to Stand, Pending Appeal |author=John Schwartz |date=November 1, 2010 |access-date=November 3, 2010 |work=The New York Times}}{{cbignore}}</ref> The U.S. Supreme Court refused to overrule the stay.<ref name="Ed O'Keefe">{{cite news |url=https://www.washingtonpost.com/wp-dyn/content/article/2010/11/05/AR2010110507139.html |author=Ed O'Keefe |access-date=November 9, 2010 |date=November 6, 2010 |title=Group asks high court to lift 'don't ask' ban |newspaper=The Washington Post}}</ref> District Court neither anticipated questions of constitutional law nor formulated a rule broader than is required by the facts. The constitutional issues regarding DADT are well-defined, and the District Court focused specifically on the relevant inquiry of whether the statute impermissibly infringed upon substantive due process rights with regard to a protected area of individual liberty. Engaging in a careful and detailed review of the facts presented to it at trial, the District Court concluded that the Government put forward no persuasive evidence to demonstrate that the statute is a valid exercise of congressional authority to legislate in the realm of protected liberty interests. See Log Cabin, 716 F. Supp. 2d at 923. Hypothetical questions were neither presented nor answered in reaching this decision. On October 19, 2010, military recruiters were told they could accept openly gay applicants.<ref name="autogenerated2">{{cite news| url=http://www.cnn.com/2010/US/10/19/pentagon.gays.recruiting/index.html |title=Military recruiters told they can accept openly gay applicants | date=October 19, 2010 |publisher=CNN}}</ref> On October 20, 2010, Lt. [[Dan Choi]], an openly gay man honorably discharged under DADT, re-enlisted in the U.S. Army.<ref>{{cite web|url=http://www.salon.com/news/dont_ask_dont_tell/?story=/politics/war_room/2010/10/20/dadt_choi_appeal|title="Don't ask, don't tell" no longer enforced, Dan Choi reenlists|work=Salon}}</ref>

Following the passage of the [[Don't Ask, Don't Tell Repeal Act of 2010]], the Justice Department asked the Ninth Circuit to suspend LCR's suit in light of the legislative repeal. LCR opposed the request, noting that gay personnel were still subject to discharge. On January 28, 2011, the Court denied the Justice Department's request.<ref>''The Advocate'': [http://www.advocate.com/News/Daily_News/2011/01/30/DADT_Case_Still_Alive/ "DADT Case Still Alive"] {{webarchive |url=https://web.archive.org/web/20110202063711/http://www.advocate.com/News/Daily_News/2011/01/30/DADT_Case_Still_Alive/ |date=February 2, 2011 }}, January 30, 2011. Retrieved February 14, 2012.</ref> The Obama administration responded by requesting that the policy be allowed to stay in place while they completed the process of assuring that its end would not impact combat readiness. On March 28, the LCR filed a brief asking that the court deny the administration's request.<ref>{{cite news| url=https://www.huffingtonpost.com/2011/03/28/dont-ask-dont-tell-end-ur_n_841739.html | work=Huffington Post | title='Don't Ask, Don't Tell' End Urged By Lawyers For Log Cabin Republicans | date=March 28, 2011}}</ref>

In 2011, while waiting for certification, several service members were discharged under DADT at their own insistence,<ref name="Still_discharges">{{cite news|author=Harmon, Andrew|title=Pentagon Confirms New DADT Discharges|newspaper=The Advocate|date=June 27, 2011|url=http://www.advocate.com/News/Daily_News/2011/06/27/Air_Force_Confirms_New_Round_of_Discharges_Under_Dont_Ask_Dont_Tell/ |access-date=July 6, 2011}}</ref> until July 6 when a three-judge panel of the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit Court of Appeals]] re-instated Judge Phillips' injunction barring further enforcement of the U.S. military's ban on openly gay service members.<ref>{{cite news|title=Appeals court orders immediate halt to gay military ban |url=https://www.nbcnews.com/id/wbna43660098 |access-date=December 29, 2012 |newspaper=MSNBC |date=July 6, 2011  }}</ref> On July 11, the appeals court asked the DOJ to inform the court if it intended to proceed with its appeal.<ref>{{cite news|title=9th Circuit orders gov't to state position on DADT|url=http://www.utsandiego.com/news/2011/jul/11/9th-circuit-orders-govt-to-state-position-on-dadt/|access-date=December 29, 2012|newspaper=San Diego Union Tribune|date=July 11, 2011}}</ref> On July 14, the Justice Department filed a motion "to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal".<ref name="Mohajer">{{cite news|url=https://www.nbcnews.com/id/wbna43779915 |title=Court: 'don't ask, don't tell' will stay in place |last=Mohajer |first=Shaya Tayefe |website=ABC News |agency=Associated Press |date=July 15, 2011 |access-date=March 16, 2021}}</ref> and warning of "significant immediate harms on the government". On July 15, the Ninth Circuit restored most of the DADT policy,<ref name=Mohajer/> but continued to prohibit the government from discharging or investigating openly gay personnel. Following the implementation of DADT's repeal, a panel of three judges of the Ninth Circuit Court of Appeals [[Vacated judgment|vacated]] the Phillips ruling.<ref>{{cite web|last=Gerstein|first=Josh|title=Appeals court nullifies 'don't ask, don't tell' ruling|publisher=[[Politico (newspaper)|Politico]]|date=September 29, 2011 |url= http://www.politico.com/blogs/joshgerstein/0911/Appeals_court_nullifies_dont_ask_dont_tell_ruling.html|access-date=September 29, 2011}}</ref>