12345678910111213141516171819202122232425262728UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIALOG CABIN REPUBLICANS, anon-profit corporation,Plaintiff,v.UNITED STATES OF AMERICAand ROBERT M. GATES,SECRETARY OF DEFENSE, inhis official capacity,Defendants. _________________________ ))))))))))))))Case No. CV 04-08425-VAP (Ex)MEMORANDUM OPINION
[Filed concurrently with Findings ofFact & Conclusions of Law]
Case 2:04-cv-08425-VAP-E Document 232 Filed 09/09/10 Page 1 of 86 Page ID #:6691
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The Act, described in greater detail below, provides that any memberof the U.S. Armed Forces who engages in homosexual conduct is subject todischarge unless the servicemember is able to demonstrate that he or shehas no propensity to engage in "homosexual conduct." Under the Act,homosexual conduct includes sexual acts with persons of the same sex,admissions that one is homosexual or bisexual, and attempts to marry aperson of the same sex.
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The Court dismissed Plaintiff's claim for violation of the EqualProtection Clause in an Order dated June 9, 2009 ("June 9, 2009, Order").(Doc. No. 83.)
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Plaintiff Log Cabin Republicans attacks the constitutionality of thestatute 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.
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Plaintiff'schallenge is two-fold: it contends the Act violates its members' rights tosubstantive due process guaranteed by the Fifth Amendment to the UnitedStates Constitution, and its members' rights of freedom of speech,association, and to petition the government, guaranteed by the FirstAmendment.
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The Court finds Plaintiff Log Cabin Republicans (sometimes referred toin this Order as "Log Cabin," "LCR," or "Plaintiff"), a non-profit corporation,has established standing to bring and maintain this suit on behalf of itsmembers. Additionally, Log Cabin Republicans has demonstrated the Don'tAsk, Don't Tell Act, on its face, violates the constitutional rights of itsmembers. Plaintiff is entitled to the relief sought in its First AmendedComplaint: a judicial declaration to that effect and a permanent injunctionbarring further enforcement of the Act.
Case 2:04-cv-08425-VAP-E Document 232 Filed 09/09/10 Page 2 of 86 Page ID #:6692
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The Court overrules Defendants' objections to Exhibit 38, the April 27,2006 Declaration of John Doe, and considers the statements containedtherein regarding Doe's then-present state of mind for the limited purpose forwhich they were offered, i.e., Doe's state of mind with respect to whether theAct chilled his speech and ability to petition the government for a redress ofgrievances. See Fed. R. Evid. 803(3).
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I. PROCEEDINGS
This case was tried to the Court on July 13 through 16 and July 20through 23, 2010. After conclusion of the evidence and closing arguments onJuly 23, 2010, both sides timely submitted supplemental post-trial briefing onthe admissiblility of a pretrial declaration submitted by Log Cabin Republicansmember John Doe,
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and the matter stood submitted.
II. STANDING
Plaintiff Log Cabin Republicans is a non-profit corporation founded in1977 and organized under the laws of the District of Columbia. (Trial Exs.109 [Bylaws], 110 [Articles of Incorporation].) Defendants challenge LCR'sstanding 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 (1992). Tobring suit on behalf of its members, an association must establish thefollowing: "(a) [at least one of] its members would otherwise have standing tosue in [his or her] own right; (b) the interests it seeks to protect are germaneto the organization's purpose; and (c) neither the claim asserted nor the reliefrequested requires the participation of individual members in the lawsuit."Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). Tosatisfy the first element of associational standing, a organization mustdemonstrate constitutional standing as to at least one member of the
Case 2:04-cv-08425-VAP-E Document 232 Filed 09/09/10 Page 3 of 86 Page ID #:6693
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