A Non-profit Corp.. v. USA

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Aaron Alexander Kahn, Devon Anne Myers, Earle D. Miller, Fernando L. Aenlle-Rocha, White & Case, Los Angeles, CA, for Log Cabin Republicans.

Daniel J. Woods, White & Case, Los Angeles, CA, Paul G. Freeborne, Joshua Edward Gardner, Ryan Bradley Parker, W. Scott Simpson, United States Department of Justice, Washington, DC, for Log Cabin Republicans and United States of America and Robert M. Gates, Secretary of Defense.

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. ¹ 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. ²

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.

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 admissibility of a pretrial declaration submitted by Log Cabin Republicans member John Doe, ³ and the matter stood submitted.

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 97 S.Ct. 2434, 53 L.Ed.2d 383 (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, 112 S.Ct. 2130; see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (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, 97 S.Ct. 2434 (citing Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (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...