Log Cabin Republicans v. United States

Where a statute is repealed while an appeal challenging the constitutionality of that statute is pending, the suit is moot on appeal because “there is no longer a present, live controversy of the kind that must exist” for a reviewing federal court to reach the merits.

Log Cabin Republicans (“Log Cabin”), a nonprofit corporation, filed suit against the United States challenging the constitutionality of the policy commonly know as “Don’t Ask, Don’t Tell” in 2004. Under 10 U.S.C. § 654(b), a service member is separated from the military if he discloses his homosexuality, engages or attempts to engage in homosexual acts, or marries or attempts to marry a person of the same sex. Log Cabin argued that § 654 is facially unconstitutional under the Due Process and Equal Protection Clauses of the Fifth Amendment, and the right to free speech under the First Amendment. The district court dismissed the equal protection claim, but found that § 654 violates due process and the First Amendment and issued an injunction barring the United States from applying the policy. The United States appealed and Log Cabin cross-appealed on its equal protection claim. While the appeal was pending, Congress enacted Don’t Ask, Don’t Tell Repeal Act of 2010. On appeal, the Ninth Circuit considered whether the case is moot given the repeal of § 654. The Court held that the suit became moot upon the repeal of § 654, reasoning that no Article III controversy would exist if Log Cabin filed suit today seeking declaratory relief and an injunction against § 654, since § 654 no longer exists. The Court was unwilling to reject mootness, because it could not say with “virtual certainty” that Congress will reenact § 654. Further, the “collateral consequences” mootness exception is inapplicable because the discharged service members’ missed benefits are not “legal penalties from past conduct.” VACATED and REMANDED.