Congressional repeal of the “don’t ask, don’t tell” law that barred openly gay and lesbian soldiers from service has rendered a constitutional challenge to the law moot, a federal appeals court says.
The Log Cabin Republicans, a gay-rights group, challenged the law seven years ago and an appeal was pending in the 9th U.S. Circuit Court of Appeals when Congress repealed the law September 20.
The three-judge panel was unanimous that the challenge had to be dismissed, but Judge Diarmuid O’Scannlain, on the panel, issued a lengthy opinion to explain that he would have upheld the law.
Judges Barry Silverman and Arthur Alarcon did not express opinions about the constitutionality of the law.
O’Scannlain stressed the important limits on substantive due process rights imposed by the U.S. Supreme Court. He warned that any court expansion of the concept of substantive due process runs the risk of subtly transforming the liberty protected by due process to the policy preferences of judges.
“In short, when confronted with assertions of new fundamental rights, rather than invite innovation the court has counseled caution,” he said.
He reasoned that the U.S. Supreme Court’s decision in that prohibits states from criminalizing private homosexual conduct between consenting adults, does not create “a fundamental right to engage in homosexual conduct.”
Log Cabin had every right to bring the suit, but “only Congress – not the courts—had the authority under our Constitution to vindicate Log Cabin’s efforts here,” O’Scannlain wrote.
Because the case is moot, his writing is purely advisory and has sets no precedent.
Case: Log Cabin Republicans v. U.S., 10-56634