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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON A. KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 E-mail: dwoods@whitecase.com E-mail: emiller@whitecase.com E-mail: aakahn@whitecase.com Attorneys for Plaintiff LOG CABIN REPUBLICANS UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, v. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants. Case No. CV 04-8425 VAP (Ex) PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Trial Date: Time: Ctrm: Judge: July 13, 2010 9:00 a.m. 2 Hon. Virginia A. Phillips

Motion for Summary Judgment Hearing Date: April 26, 2010 Pre-Trial Conference: June 28, 2010 Complaint Filed: October 12, 2004

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. IV. I. II.

TABLE OF CONTENTS Page INTRODUCTION............................................................................................ 1 THE WITT STANDARD APPLIES TO LOG CABIN’S SUBSTANTIVE DUE PROCESS CLAIM ..................................................... 1 A. B. C. D. E. The Question of the Standard of Review Is Independent of Whether the Challenge Is Facial or As-Applied.................................... 3 DADT Fails Witt’s Intermediate Scrutiny Standard ............................. 4 Beller Does Not Control This Case ....................................................... 5 Evidence Is Not Restricted to the Legislative History........................... 6 A Facial Challenge to DADT Does Not Automatically Entitle Defendants to Summary Judgment ...................................................... 10

A STAY IS INAPPROPRIATE BECAUSE RECENT LEGISLATIVE EVENTS DO NOT PROMISE REPEAL ...................................................... 12 CONCLUSION .............................................................................................. 15

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TABLE OF AUTHORITIES Page(s) Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009) ................................................................................ 7 Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980) ............................................................................ 5, 6 Blue Cross v. Unity Outpatient Surgery Center, 490 F.3d 718 (9th Cir. 2007) .............................................................................. 14 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ........................................ 7 Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) ............................................ 3 Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059 (9th Cir. 2007) ............................................................................ 14 FCC v. Beach Comm., Inc., 508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) ...................................... 8 Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986) ........................................ 9 Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) ................................ 9, 10 Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) ................................ 9, 10 Kremens v. Bartley, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) ........................................ 14 Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) .............................passim Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857 (9th Cir. 1979) .............................................................................. 14 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ............................ 3, 8, 11 Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) .................................. 10, 14 Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) ...................................... 5 Spector Motor Serv. Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944) .............................................. 14 - ii LOSANGELES 869697 (2K)

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United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ................................ 10, 11 United States v. Vilches-Navarrete, 523 F.3d 1 (1st Cir. 2008) .................................................................................. 14 Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ..........................4, 11, 12 Witt v. Air Force, 527 F.3d 806 (9th Cir. 2008) .......................................................................passim Young v. INS, 208 F.3d 1116 (9th Cir. 2000) ............................................................................ 14 DOCKETED CASES Witt v. Dep’t of Air Force, Case No. 3:06-cv-5195 (W.D. Wash.) ............................................................... 15 FEDERAL STATUTES 10 U.S.C. § 654.................................................................................................... 4, 11

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I. INTRODUCTION On May 27, 2010, the Court asked the parties to file supplemental briefs “for the sole purpose of discussing application of the Witt standard to Plaintiff’s substantive due process claim.” Defendants’ Supplemental Brief ignores the Court’s directive; reiterates arguments and positions that have already been briefed and needed no further exposition; continues to cite bad law such as Beller v. Middendorf, Cook v. Gates, and Philips v. Perry, none of which control in this Circuit today; and fails to answer the central, sole question that the Court posed: does the DADT Policy survive constitutional scrutiny under the Witt standard? The answer is no. Witt applies and DADT fails that standard. The Court should deny the motion for summary judgment. The parasitical procedural requests, for a stay and for bifurcation, that the government tacks on to its brief should also be denied. II. THE WITT STANDARD APPLIES TO LOG CABIN’S SUBSTANTIVE DUE PROCESS CLAIM In its opposition to the motion for summary judgment, Log Cabin argued that some heightened level of scrutiny, greater than rational-basis review, is required to determine the constitutionality of DADT. (Doc. 140, pp. 9-12.) While Log Cabin did not specifically request application of the Witt standard, the Ninth Circuit announced that standard specifically in the context of a constitutional challenge to DADT and it is appropriate to apply it. The Court’s inclination stated in its May 27, 2010 Order is therefore correct: the Witt standard of review applies in this case. Witt requires that “when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must -1LOSANGELES 869697 (2K)

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be necessary to further that interest. In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government’s interest.” Witt v. Air Force, 527 F.3d 806, 819 (9th Cir. 2008). Given that sexual intimacy is recognized as important in U.S. society and is a protected liberty interest under Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and given that servicemembers are not expected to remain forever celibate, DADT intrudes upon the personal and private lives of homosexual servicemembers in a manner that implicates the rights identified in Lawrence. The Witt level of intermediate scrutiny is therefore appropriate here. That Log Cabin’s challenge to DADT is facial rather than as-applied does not affect this conclusion. As shown below, the extensive evidence that Log Cabin submitted in its opposition to the summary judgment motion shows that DADT does not “significantly further” the asserted governmental interests, and mandates far greater intrusions than are necessary to further those interests. DADT therefore fails the Witt standard. Instead of addressing the Court’s query regarding application of the Witt standard, and whether DADT survives constitutional scrutiny when that standard is applied, defendants’ Supplemental Brief continues to argue that traditional rational basis scrutiny, the most deferential standard of constitutional review, applies. They did so in their pretrial filings as well (Docs. 186, 188-1). But nowhere do they respond to the Court’s direction as to what their brief should address. Defendants also ignored the Court’s invitation to submit further evidence in support of their position. Log Cabin, however, is submitting with this brief important additional evidence that further bolsters its challenge: five declarations from servicemembers discharged under or impacted by DADT. Those witnesses come from different branches of the military and were impacted by DADT in different ways. They represent examples – five among many that could be adduced – of how DADT actually undermines the goals of unit cohesion, morale, good order and discipline, and military readiness, and demonstrate how DADT therefore fails -2LOSANGELES 869697 (2K)

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to meet the due process standards of Witt.1 A. The Question of the Standard of Review Is Independent of Whether the Challenge Is Facial or As-Applied At the outset, it is critical to note that defendants’ Supplemental Brief confuses two independent issues: whether a constitutional challenge to a statute is facial or as-applied; and the level of scrutiny to be applied to that constitutional challenge. It is not the case, as defendants appear to claim (Supp. Bf. at 8-9), that a facial challenge demands rational-basis review. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), on which Lawrence relied to affirm the substantive due process right at issue here, demonstrates that intermediate scrutiny is appropriate in connection with a facial challenge. The plaintiffs in Casey brought a facial substantive due process challenge to a Pennsylvania abortion statute and sought declaratory and injunctive relief – the same relief Log Cabin requests here. 505 U.S. at 845. The Court nevertheless analyzed the statute under an undue burden standard of scrutiny – a variety of intermediate scrutiny.2 See id. at 877-78. Indeed, Witt itself demonstrates the error in defendants’ logic. Witt acknowledged that the intermediate scrutiny standard it derived from Sell v. United States is similar to the intermediate scrutiny test in equal protection cases such as Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). See Witt, 527 F.3d at 818, n.7. Craig v. Boren was, like Casey and like this case, a facial challenge in which the plaintiffs sought declaratory and injunctive relief. Craig, 429 U.S. at 192. Casey, Craig, and Witt make clear that this Court may employ intermediate scrutiny to analyze a facial challenge. See Declarations of Joseph Christopher Rocha, Jenny L. Kopfstein, Michael D. Almy, Anthony Loverde, and Stephen J. Vossler, filed concurrently herewith. 2 While Justice O’Connor did not expressly identify the undue burden standard as intermediate scrutiny, she made clear that it required more than rational basis. After all, the dissent would have applied only the “rational relationship test.” Id. at 845. Log Cabin similarly presents a facial challenge that requires something more than rational basis. See Opposition to Summary Judgment (Doc. 140) at 9-12. -3LOSANGELES 869697 (2K)

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Defendants rely on Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008), but that case does not support their position. Washington State Grange was a facial challenge to the state’s blanket primary system. The Supreme Court rejected the facial challenge as premature and reiterated a preference for as-applied challenges, but it nonetheless recognized that strict scrutiny might apply, even in a facial challenge, if the statute severely burdened associational rights. 552 U.S. at 451. B. DADT Fails Witt’s Intermediate Scrutiny Standard

While purportedly addressed to the important governmental interests of military “morale, good order and discipline, and unit cohesion that are the essence of military capability” (10 U.S.C. § 654(a)(15)), DADT does not significantly further those interests, nor is it necessary to further those interests, nor is it the least intrusive means to achieve those interests. DADT, therefore, violates substantive due process. Log Cabin’s opposition to the motion for summary judgment detailed the voluminous evidence as to how the enactment and implementation of DADT violates substantive due process. Every item of evidence that is before the Court on this motion illustrates how DADT fails to satisfy the Witt factors.3 When measured All that evidence need not be repeated here, but to recap some of the most egregious ways in which DADT violates the required due process standard of scrutiny: (1) no objective studies, reports, or data, either pre- or post-enactment, support DADT’s congruence to Congress’s stated objectives, and in fact such studies are to the contrary; (2) the enactment of DADT was motivated by animus and prejudice; (3) the military itself recognizes that sexual orientation is not germane to military service, inasmuch as DADT is applied more frequently in time of peace than in time of war, and the military knowingly deploys openly homosexual servicemembers to foreign theaters of combat when they are needed; (4) DADT has a disproportionate impact on women, and several of its underlying rationales do not apply to female servicemembers; (5) the experience of comparable foreign militaries, and the experience of the thousands of U.S. troops who fight side-by-side with, and in some instances are commanded by, openly homosexual members of the armed forces of foreign militaries without any impact on unit cohesion, belie the rationale enunciated for DADT; (6) the discharge of servicemembers in non-combat but critical occupations actually undermines national security; (7) the actual undermining of military effectiveness, military readiness, unit cohesion, and troop morale, and the impairment of recruitment and retention; (8) the military’s resort to “moral waivers” and enlistment of over 4000 felons to make up for the personnel shortfall caused in part by DADT; and (9) the violation of servicemembers’ First Amendment rights of speech and association. -4LOSANGELES 869697 (2K)

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against the constitutional scrutiny required by Witt, DADT does not survive. Additionally, for summary judgment purposes, DADT fails the Witt standard of due process scrutiny – and indeed all constitutional scrutiny – because Defendants have submitted no evidence demonstrating DADT’s relationship to its stated purposes, while Log Cabin has shown that DADT actually impairs those interests. Witt recognized that the Supreme Court in Sell v. United States, 539 U.S. 166, 178, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), and in Lawrence, 539 U.S. at 578, required the state to justify its intrusion into an individual’s recognized liberty interest. Witt, 527 F.3d at 818. Thus, as with active rational basis, application of the Witt standard places the burden on the government to demonstrate that each element of the test is satisfied. It has not met that burden. C. Beller Does Not Control This Case

The government continues to argue that if a heightened scrutiny standard applies, Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), governs this case despite Witt’s statement that “Beller’s heightened scrutiny analysis and holding … have been effectively overruled by intervening Supreme Court authority.” Witt, 527 F.3d at 820. In fact, at least three aspects of Beller are no longer good law. Witt overruled Beller’s refusal to apply an as-applied analysis to DADT’s predecessor policy. Witt, 527 F.3d at 820. Witt recognized that Palmore v. Sidoti and City of Cleburne, cases that post-date Beller, would have changed at least a portion of Beller’s heightened scrutiny analysis. Witt, 527 F.3d at 820 n.10 (Palmore and Cleburne would today preclude as a justification for DADT the need to avoid sexual tension between known homosexuals and others who despise homosexuals). And, as plainly as can be, Witt itself states, “our holding in Beller … that a predecessor policy to DADT survived heightened scrutiny under the Due Process Clause, is no longer good law.” Witt, 527 F.3d at 819 (citations omitted). Defendants ignore all this completely. Instead, they seize on the fact that Witt was an as-applied challenge and make the illogical leap to argue that Beller’s -5LOSANGELES 869697 (2K)

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analysis still governs a facial challenge to DADT. Witt forecloses that argument.4 D. Evidence Is Not Restricted to the Legislative History

When applying the heightened scrutiny requirement of Witt, evidence must be brought to bear on the analysis. Defendants argue that, regardless of the level of scrutiny applicable, DADT’s constitutionality should be analyzed “without reference to evidence adduced through discovery,” and maintain that only the Congressional record is relevant. Defendants are incorrect. Neither the facial nature of Log Cabin’s challenge, nor principles of deference to the military, limits the evidence Log Cabin may introduce at trial. First, in its July 24, 2009 Order, this Court has already rejected the same arguments defendants present here, in ruling that Log Cabin “is entitled to conduct discovery in this case to develop the basis for its facial challenge,” even if only rational basis review applied. (Doc. 91 at 3). That discovery has resulted in substantial evidence demonstrating the irrationality of DADT, and showing, as Witt requires, that DADT neither significantly furthers the governmental interests identified in the statute, nor is the least intrusive means necessary to do so. Consistent with its July 24, 2009 Order, the Court should now rule that the evidence Log Cabin has developed through discovery is admissible. Defendants also recycle their argument that only evidence existing at the time of a statute’s enactment may be considered in a rational basis review. This is incorrect even if rational basis review applied, as Log Cabin showed in its Opposition. In any case, where a higher level of scrutiny applies, such as that Beller could not govern how DADT is analyzed under a heightened scrutiny test even if it remained good law. DADT differs from its predecessor policy by recognizing that homosexuals may and do serve in the Armed Forces. Thus, justifications that may have supported the old policy are no longer applicable. To cite just one example, in support of the policy at issue in Beller the Navy claimed that there “would be an adverse impact on recruiting should parents become concerned with their children associating with individuals who are incapable of maintaining high moral standards.” Beller, 632 F.2d at 811, n.22. This rationale is inapplicable now since homosexuals – purportedly incapable of high moral standards – serve in significant numbers. -6LOSANGELES 869697 (2K)

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required by Witt, it is defendants’ burden to prove, through evidence, a tight fit between the statute and its stated goals. Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009), is instructive. Annex Books held that when a legislative body (there a municipality) promulgates a regulation subject to intermediate scrutiny, it must marshal evidence supporting the need for the policy. Id. at 462, 464. It is not enough to simply “belittle plaintiffs’ evidence.” Id. at 464. Annex Books arose out of a first amendment challenge to a municipal ordinance regulating adult book and video stores. Applying intermediate scrutiny, the court rejected the city’s argument that “any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city.” Under a heightened scrutiny analysis, “the public benefits of the restrictions must be established by evidence, and not just asserted.” And it was the city’s burden to adduce that evidence. Id. at 463 (citations omitted). The case was remanded for an evidentiary hearing. Id. at 467. Furthermore, even if the standard is “active rational basis,” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), teaches that evidence outside the legislative record is relevant. In Cleburne, the Court examined evidence of the many other uses to which the subject property could be put without the special use permit required by the city council to house mentally retarded individuals, id. at 449-50, and confirmed that when some heightened scrutiny applies – as it did in Cleburne and as it does here – “judgment [must be] suspended until the facts are in and the evidence [is] considered.” 473 U.S. at 471-72 (Stevens, J., concurring). In addition, Lawrence itself demonstrates that evidence beyond the Congressional record is relevant even in a facial challenge. As in Cleburne, the Court in Lawrence analyzed the factual context behind Texas’ enactment – far more than it did the legislative history. 539 U.S. at 572, 576-77. In the context of a -7LOSANGELES 869697 (2K)

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facial challenge, Lawrence examined, inter alia, foreign treatment of sodomy laws, evolution of sodomy laws throughout the United States, and the pattern of actual enforcement of such laws since the Bowers decision. Id. at 570-73. But most importantly, Lawrence recognized that the judiciary’s duty often is to subject a statute once viewed as constitutionally sound to deeper examination: Those who drew and ratified the Due Process Clauses … knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. 539 U.S. at 578-79. Limiting evidence to the frozen-in-time Congressional record would forever shield enactments from exposure to such truths.5 Nor do defendants’ authorities support their arguments here. FCC v. Beach Comm., Inc., 508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993), was a traditional rational basis case arising out of a challenge to economic legislation. Congress exempted certain private institutions from a regulatory scheme and simply defined the private facilities that would qualify for the exemption. The cable television statute at issue was not entitled to any form of heightened scrutiny. See 508 U.S. at 314-15. It is therefore inapplicable. Beach is simply a case about Congressional line-drawing and judicial resistance, when rational basis applies, to second-guessing where Congress draws such lines. Id. at 315-16. DADT, by contrast, is not an instance of Congressional line drawing. It is a statute that prevents all homosexual Americans from serving their country if they engage in constitutionally protected conduct and speech. Casey also exposes the error in defendants’ evidentiary argument. In deciding whether various aspects of Pennsylvania’s abortion statute passed the undue burden intermediate scrutiny standard, the Supreme Court had several occasions to consult evidence beyond legislative history – evidence developed at trial. See, e.g., 505 U.S. at 845, 884-86 (considering, for example, practical effect of 24-hour waiting period, including distances many women would have to travel, exposure of women to harassment, and the effect on low-income women). -8LOSANGELES 869697 (2K)

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Neither is Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986), applicable here. Goldman involved a military regulation – a dress code – that, by its terms, applied to servicemembers only “while performing their military duties.” 475 U.S. at 508. Expert testimony was offered to demonstrate that religious exceptions to the dress code are “desirable and will increase morale by making the Air Force a more humane place.” Id. at 509. In other words, the experts in Goldman did not contend that the regulation undermined the military interest at issue – discipline. They sought to prove only that changing the regulation would be better. The expert evidence Log Cabin will present at trial, however, will not simply demonstrate that an end to DADT would better fit the military’s stated objectives. Log Cabin’s proffered experts – historians, social scientists, and psychologists – will demonstrate that DADT does nothing to further the military’s goals and actually undermines those goals, revealing DADT as a policy born solely of animus. Goldman involved no allegation that the religious headwear ban arose from animus. Moreover, Goldman permitted expression in a private setting. It was far less invasive of constitutional rights than is DADT. DADT regulates servicemembers’ private consensual intimate conduct – the very conduct protected by Lawrence.6 Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004), and Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), affirmed the courts’ traditional role to protect individual rights, even when military affairs are at issue. While “accord[ing] the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war,” the Court held that “it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of
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reviewing and resolving claims.” Hamdi, 542 U.S. at 535. The Court rejected the Executive’s attempt to subject enemy combatant incarcerations to a low “some evidence standard,” mandating instead that detainees are entitled to a fact-finding process. Id. at 537-39. And Hamdan reaffirmed the duty of the courts, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.” 548 U.S. at 588.7 If the military cannot deprive enemy combatants of constitutional rights, it certainly cannot do so to its own servicemembers. Finally, the evidence in this case cannot be limited to DADT’s 1993 legislative history because Log Cabin’s challenge arises out of the due process rights that the Supreme Court first recognized in Lawrence. Until 2003, and indeed in 1993, Bowers v. Hardwick was the law. Congress would have had no occasion to deliberate the impact of DADT upon individual rights, because Bowers had affirmatively held that no such individual rights existed under the due process clause. Congress could not have fully considered the issues presented in this case.8 For this Court to fully analyze the impact of DADT on the constitutional rights recognized in Lawrence, evidence outside of Congressional deliberations is critical. E. A Facial Challenge to DADT Does Not Automatically Entitle Defendants to Summary Judgment As they have done repeatedly before, defendants again fall back on United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), to argue that Log Cabin must prove that “no set of circumstances exists” under which DADT would be valid. But defendants make too much of Salerno and ignore the more applicable precedent, Planned Parenthood v. Casey. Notably, the Court in Hamdan looked to several sources of evidence beyond legislative history, including foreign laws and the total lack of evidence supporting the Executive’s assertion that application of court-martial rules would be impracticable. Id. at 610, 623. 8 Cf. Rostker, infra, 453 U.S. at 71 (upholding gender-based statute only because Congress fully considered the constitutional issues it raised). - 10 LOSANGELES 869697 (2K)

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Decided five years after Salerno, Casey involved a substantive due process facial challenge governed by the undue burden variety of intermediate scrutiny. The Supreme Court did not deem itself bound by Salerno to examine whether the abortion restrictions presented a substantial obstacle to all women to whom they applied. Rather, the Court held that the offending restrictions violated substantive due process because they would have amounted to an undue burden in “a large fraction of the cases in which [they were] relevant.” Casey, 505 U.S. at 895. At trial, Log Cabin will present evidence demonstrating that DADT violates substantive due process in much more than just “a large fraction of the cases,” through the testimony of its expert witnesses, its member Alex Nicholson, and the other servicemembers whose declarations are filed herewith. Salerno is additionally distinguishable in that the statute at issue (the Bail Reform Act of 1984 which, for community safety purposes, allowed for federal detention without bail of arrestees pending trial), unlike DADT, built in many discretionary factors as constraints on its implementation. “[E]xtensive safeguards,” such as the right to present evidence and cross-examine witnesses, the burden upon the government to present clear and convincing evidence, the requirement that the court issue written findings, the right of immediate appellate review, “suffice[d] to repel” a facial challenge. Salerno, 481 U.S. at 751-52. By contrast, DADT is essentially mandatory. A servicemember exercising the privacy right recognized in Lawrence will, if discovered, result in discharge: “A member of the armed forces shall be separated … if one or more of the following findings is made and approved …:” 10 U.S.C. § 654(b) (emphasis added). Defendants also claim that Washington State Grange, supra, stands for the proposition that facial challenges are disfavored and contrary to principles of judicial restraint. Supp. Bf. at 8-9. But defendants again omit the context of that proposition. The Supreme Court’s denial of the plaintiffs’ facial challenge in Washington State Grange was based completely on the fact that the challenge was - 11 LOSANGELES 869697 (2K)

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premature, and lacked an evidentiary record: the challenge was brought immediately after enactment of the election statute at issue and before Washington held any elections under it. Id. at 448, 455, 458 (“Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out”). The Court declined to grant the facial challenge because it would have to speculate regarding the actual implementation of the law, and would have to conjure “hypothetical” or “imaginary” scenarios. Id. at 450, 454-55. The reasoning of Washington State Grange is inapplicable here. Constitutional scrutiny of DADT is hardly premature, or based on sheer speculation. DADT has an established history of implementation: the statute has been in place for 17 years. Log Cabin’s voluminous evidence will demonstrate that the actual implementation of DADT exposes its unconstitutionality.9 III. A STAY IS INAPPROPRIATE BECAUSE RECENT LEGISLATIVE EVENTS DO NOT PROMISE REPEAL The government’s supplemental brief again asks the Court to “defer ruling” – i.e., stay the trial – because the political branches have supposedly taken steps “to facilitate” repeal of DADT. This Court has already denied two prior requests for stay by the government, on November 24, 2009, and March 4, 2010, and should do so again, for several reasons. First, the Court should deny the request because the government has not formally moved for a stay; its request for a stay is in the middle of a brief on the standard of review applicable to the trial of the merits. If the Court does consider this backhanded and procedurally improper procedure to seek a stay, it should deny the stay because the pending legislation may never pass, provides in any event only
9

In this way, Log Cabin’s suit again more resembles Lawrence. The Lawrence Court showed no resistance to the facial challenge presented because the sodomy statute at issue had been applied against the criminal defendants there and countless others. There was no need to speculate about or imagine the effect of its enforcement. - 12 PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW

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for conditional repeal, and repeal would be far from immediate. Legislation to repeal DADT has been pending in Congress for many years. That the House of Representatives recently passed a bill calling for repeal is a positive step, but repeal is not certain. The government does not provide any information as to when the Senate may vote on possible repeal. No date is scheduled for a vote and various news reports speculate that the Senate may not take up the issue until the fall. When it does, there is no assurance that the Senate will pass the legislation; various Senators have already voiced their opposition to the bill and some have even threatened a filibuster. Even if the proposed legislation, a copy of which is attached to the government’s brief, passes the Senate, repeal would not be immediate. The Senate version of the legislation may differ from the bill passed by the House and the two versions of the bill would then require reconciliation. If the Senate and House bills are reconciled, and if the President signs the legislation, repeal of DADT is still conditional and is not immediate. Under the proposed legislation, repeal of DADT is conditional on (1) the Secretary of Defense receiving the report of the “Comprehensive Review” currently being undertaken by the Military Working Group; and (2) the President’s transmission to Congress of a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, confirming that they have considered the report’s recommendations and its proposed plan of action, that the Defense Department has prepared necessary policies and regulations, and that the implementation of those policies and regulations is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces. All that is no small task, and repeal would not take place until 60 days after the last of all those events occurs; and the pending legislation also specifically provides that DADT “shall remain in effect” until these requirements and certifications are met and, if they are not met, DADT “shall remain in effect.” - 13 LOSANGELES 869697 (2K)

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10

The government offers no timetable as to whether or when any of these events may occur. The report of the study is not expected until December 2010 at the earliest; its recommendations will not be known until then and it is not certain that the study will recommend repeal. Following the delivery of the report, assuming it recommends outright repeal rather than some partial measure, it must be considered; the Department of Defense must prepare policies and procedures for implementing the repeal; and the various certifications must be obtained. There is no way to know whether or when all of these events may occur. The cases cited by the government do not support the government’s position that a stay is appropriate under these circumstances.10 The government refers to separate “judicial, administrative, or arbitral” proceedings as prudential grounds for a stay of litigation, but cites no case where any court has stayed the imminent trial of the constitutionality of a statute because legislation for repeal of the statute was only pending in Congress. There is no such case. To the contrary, the Ninth Circuit has reversed trial court stay orders of infinite duration.11 Because the government seeks a stay of indefinite duration, the controlling authorities compel the Court to deny the government’s request. Finally, in the Witt case, on remand, the district court on June 14, 2010 Spector Motor Serv. Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101, (1944), concerned the constitutionality of unresolved state law in a situation where state law provided an alternative remedy. United States v. VilchesNavarrete, 523 F.3d 1 (1st Cir. 2008), involved a situation where the court did not need to decide the constitutionality of a criminal statute because the defendant did not violate the statute. Kremens v. Bartley, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed. 2d 184 (1977), involved a constitutional challenge to a statute that had already been repealed, effective immediately. Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857 (9th Cir. 1979), involved a stay pending the completion of related arbitration proceedings. Blue Cross v. Unity Outpatient Surgery Center, 490 F.3d 718 (9th Cir. 2007), involved a stay of civil proceedings pending the resolution of related criminal proceedings. And Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed. 2d 478 (1981), a due process challenge to the exclusion of women from the military draft, involved neither a stay nor judicial abstention; the Court reached and decided the constitutional challenge.
11

E.g., Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066-67 (9th Cir. 2007). See also Young v. INS, 208 F.3d 1116, 1119 (9th Cir. 2000); Leyva, 593 F.2d at 864. - 14 PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW

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declined to reschedule the pending trial date. Minute Entry, Witt v. Dep’t of Air Force, Case No. 3:06-cv-5195 (W.D. Wash.) (Dkt. No. 95) (copy attached as Exhibit 1) (“The shifting political climate surrounding “Don’t Ask, Don’t Tell” begs the question of whether trial should be rescheduled to a later date. (Currently the trial is scheduled for 9/13/2010); the Court declines to reset the trial date at this time”).12 IV. CONCLUSION The Witt standard applies to this case. Evidence of the circumstances of the enactment and implementation of DADT is relevant to the Court’s analysis under that standard, and that evidence shows that DADT fails the Witt standard and violates substantive due process. The Court should therefore deny the government’s motion for summary judgment. Moreover, once the Court determines that Witt applies, the Court would actually be able to award summary judgment to Log Cabin, sua sponte, because the government has submitted no evidence in response to the Court’s invitation and the evidence Log Cabin submitted shows that DADT violates the U.S. Constitution. At a minimum, the Court should let the case proceed to a trial, which DADT will not survive. Dated: June 23, 2010 WHITE & CASE LLP By: /s/ Dan Woods Dan Woods Attorneys for Plaintiff LOG CABIN REPUBLICANS
12

In footnote 6 at the end of its Supplemental Brief, the government requests that the trial be bifurcated, limited to the issue of Log Cabin’s standing. Log Cabin objects to this procedurally improper request. Bifurcating or limiting the trial to the standing issue is unnecessary, since the evidence on that issue can readily be presented as part of the overall case, and would prejudicially interfere with Log Cabin’s presentation of its case since its experts, who are academics and prominent public figures, cannot readily rearrange their schedules to accommodate the delay and uncertainty that such bifurcation would entail. In any event, the government has already raised that request in its pretrial Memorandum of Contentions of Fact and Law (Doc. 186), and the issue should be dealt with at the pretrial conference. - 15 PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW

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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: emiller@whitecase.com Email: aakahn@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, vs. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV 04-8425 VAP (Ex) DECLARATION OF MICHAEL D. ALMY IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Judge: Hon. Virginia A. Phillips

Complaint filed: Trial:

October 12, 2004 July 13, 2010

DECLARATION OF MICHAEL D. ALMY I, Michael D. Almy, declare as follows: 1. I am over 18 years old and, if called as a witness, I would be able to

testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration. 2. I served as an active duty member of the United States Air Force from

June 1993 to July 2006.

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3.

I joined the United States Air Force Reserve Officers’ Training Corps

(“AFROTC”) at Wright State University in 1988 and was awarded a full scholarship. 4. In the summer of 1991, I was one of a handful of AFROTC cadets who

reported to Fort Benning, near the city of Columbus, Georgia, for Army Airborne Training. While at Fort Benning, I earned a United States Parachutist Badge, commonly referred to as “Jump Wings.” 5. In 1992, I graduated from the AFROTC in the top 10% of all

graduates nationwide. 6. 7. In December 1992, I was promoted to Second Lieutenant. In June 1993, I went on active duty and was assigned to Keesler Air

Force Base in Biloxi, Mississippi for Basic Communications-Electronics Officer Training. Following completion of this course, I was stationed at the Air Intelligence Agency at Kelly Air Force Base in San Antonio, Texas. I remained at Kelly Air Force Base for approximately nine months, until I was accepted for navigator training at Randolph Air Force Base in Universal City, Texas in 1994. While there, I completed nearly nine months of navigator school. I did not complete navigator school because I failed a few examinations. 8. 9. In March 1995, I was promoted to First Lieutenant. In approximately June 1995, I left navigator school and was assigned

to Scott Air Force Base in St. Clair County, Illinois. There, I initially worked on systems support for the J2 Directorate of the United States Transportation Command. Following this task, I worked at the help desk for all Air Mobility Command and control systems. 10. 11. In March 1997, I was promoted to Captain. In 1998, I was stationed at the Third Combat Communications Group

at Tinker Air Force Base in Oklahoma City, Oklahoma. While stationed in Oklahoma City, I was named officer of the year for my unit of nearly 1,000 people. -2LOSANGELES 867900 v2 (2K)

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12.

In September 1998, I deployed to Eskan Village, Saudi Arabia as the

senior communicator from my unit with approximately 60 personnel from my squadron. There, my squadron and I supported all the base-level communications requirements during Operation Desert Fox. I remained in Saudi Arabia until February 1999. 13. Oklahoma. 14. In September 1999, I again deployed to Saudi Arabia to Prince Sultan After my time in Saudi Arabia, I returned to Tinker Air Force Base in

Air Base. There, I served as the executive officer for the 363d Expeditionary Operations Group. I remained in Saudi Arabia until December 1999. 15. Oklahoma. 16. In July 2001, I was transferred to Quantico Marine Corps Base near After my time in Saudi Arabia, I returned to Tinker Air Force Base in

Triangle, Virginia as one of six Air Force officers attending the United States Marine Corps C2 Systems School. This ten-month course has since become the United States Marine Corps Expeditionary Warfare Course, and is the in-residence professional military education that all Marine captains strive to attend. I completed the course, and remained in Virginia until June 2002. 17. In June 2002, I was transferred to Ramstein Air Base located near

Kaiserslautern, Germany to serve in the Communications Directorate of the Headquarters of the United States Air Forces in Europe. There, I worked on tactical communications and airborne communications projects. I remained in Germany until December 2002. 18. In December 2002, I was deployed to Prince Sultan Air Base to work

in the J6 directorate of the Combined Air and Space Operations Center during the invasion of Iraq. As part of this assignment, I was directly responsible for the communications activation of newly deployed sites. I also helped ensure a smooth -3LOSANGELES 867900 v2 (2K)

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transition of all communications functions to the new Combined Air and Space Operations Center at Al Udeid Air Base in Qatar. 19. Before I left Prince Sultan Air Base in May 2003, I was contacted by

my leadership at Ramstein Air Base in Germany and asked if I wanted the Chief of Maintenance position at the 606th Air Control Squadron at Spangdahlem Air Base, Germany. I accepted the position. 20. In May 2003, I returned to Ramstein Air Base in Germany. While I

was there, I obtained the rank of Major in approximately August 2003. 21. In September 2003, I reported to my new assignment at the 52d

Fighter Wing at Spangdahlem Air Base in Germany. As part of my new assignment, I was in charge of 180 personnel. 22. While I was stationed at Spangdahlem Air Base, I regularly attended

Christian chapel services and served as a mentor to younger airmen, their spouses and family members of deployed members that needed emotional support. 23. In September 2004, my unit deployed to three locations in Iraq. While

in Iraq, my unit controlled the airspace over two-thirds of Iraq, and my troops maintained the equipment necessary for that mission. This included Close Air Support for the liberation of Fallujah. During this time, my unit sustained repeated mortar and rocket attacks. When one of my troops was injured by rocket fire, I rallied my troops, aided the wounded and restored damaged equipment to service, thus avoiding the loss of the mission. 24. While I was in Iraq, I occasionally volunteered at the hospital in Balad,

Iraq. As a volunteer, I would comfort patients and move them to the flight line for the MEDEVAC helicopters so that they could be transported to Landstuhl Regional Medical Center located near Landstuhl, Germany, which is the nearest treatment center for wounded soldiers coming from Iraq and Afghanistan.

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25.

As a result of my leadership, I was nominated for and received the

2004 Lieutenant General Leo Marquez Award in the field grade officer category for electronic maintenance. The Lieutenant General Leo Marquez Award is presented to maintainers who have demonstrated the highest degree of sustained job performance, job knowledge, job efficiency and results in the categories of aircraft, munitions and missile, and communications-electronics maintenance. As a result of receiving the Lieutenant General Leo Marquez Award, I was regarded as the top Air Force Communications Officer in Europe. 26. While in Iraq, I utilized, at the permission of the United States Air

Force, Air Force computers to send and receive electronic mail correspondence for personal purposes from my government-issued electronic mail account because the Air Force restricted access to all private electronic mail systems, and therefore my government-issued account was the only way I could send and receive electronic mail. 27. My unit remained in Iraq until the beginning of 2005. Thereafter, my

unit returned to Spangdahlem Air Base in Germany. 28. In approximately February 2005, a search was conducted on the

computer I utilized while I was stationed in Iraq. The search resulted in the discovery of emails I had sent to two men between December 2004 and January 2005. In the emails, I discussed homosexual conduct. The emails were forwarded to my Commander, and I was called into my Commander’s office. While in my Commander’s office, I was read the Don’t Ask, Don’t Tell policy. I was then handed the emails and asked how I could explain their content. I told my Commander that I wanted to talk to a lawyer before I made any kind of statement. At no point did I indicate to my Commander that I am homosexual.

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29.

Because of the content of the emails and my Commander’s perception

that I had violated Don’t Ask, Don’t Tell, I was relieved of my duties on March 14, 2005. As a result, my security clearance was suspended and a portion of my compensation was terminated. 30. duties. 31. My removal from my position of leadership resulted in tremendous The members of my unit were not told why I was relieved of my

disruption to my unit and a loss of unit cohesion. 32. I was replaced with a junior officer that had neither the training nor the

expertise that I had. 33. After I was relieved of my duties, I remained at Spangdahlem Air Base

in Germany for approximately sixteen months. During this time period, I was assigned to an administrative desk job. 34. The Air Force started discharge proceedings against me when they

presented me with a Notification of Show-Cause Action dated July 7, 2005. 35. I initially contested my discharge. I invoked my right to an

administrative hearing, instead of resigning my commission. In preparation for the hearing, I had several of my former troops write character reference letters for me, including one of my squadron Commanders. In addition, a chaplain at Spangdahlem Air Base also wrote a letter. Copies of several character reference letters are attached hereto as Exhibit “A.” 36. In approximately March 2006, my Wing Commander recommended

that I be promoted to Lieutenant Colonel, even though the United States Air Force was pursuing my discharge. 37. Approximately a week before the administrative hearing, my lawyer

told me there was no way we would win the hearing and that the government’s lawyers were pushing for a general discharge instead of an honorable discharge. I wanted to make sure I got an honorable discharge, and I told my lawyer this. My -6LOSANGELES 867900 v2 (2K)

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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: emiller@whitecase.com Email: aakahn@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, vs. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV 04-8425 VAP (Ex) DECLARATION OF JENNY L. KOPFSTEIN IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Judge: Hon. Virginia A. Phillips

Complaint filed: Trial:

October 12, 2004 July 13, 2010

DECLARATION OF JENNY L. KOPFSTEIN I, Jenny L. Kopfstein, declare as follows: 1. I am over 18 years old and, if called as a witness, I would be able to

testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration.

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2.

I am a U.S. Navy veteran and U.S. Naval Academy graduate who

served openly as a lesbian officer for almost 2½ years before I was discharged under Don't Ask, Don’t Tell in 2002. 3. I joined the Navy in June 1995 when I enrolled in the U.S. Naval

Academy. At the Naval Academy, I majored in physics. 4. The Naval Academy teaches you about honor and integrity. It places a

special emphasis on these values. On a midshipmen’s first day at the Naval Academy, you are given uniforms, shoe polish and metal polish, and you are taught the Naval Academy’s Honor Concept. The Honor Concept starts out, “Midshipmen are persons of integrity: they do not lie, cheat, or steal.” 5. Midshipmen are considered the guardians of the Honor Concept.

Midshipmen honor representatives serve on an Honor Committee and oversee the honor system by conducting education classes and investigating possible honor incidents. 6. When I was a senior midshipman, I interviewed for the position of and

was selected to serve as an investigator for the Honor Staff, which is a subset of the Honor Committee. I investigated midshipmen who were accused of violating the Honor Concept. This experience brought home to me the importance of integrity and just what it means not to lie. 7. During my senior year at the Naval Academy, I was notified that I

would eventually be serving on the USS SHILOH, a guided missile cruiser named in remembrance of the Battle of Shiloh in the American Civil War. 8. In May 1999, I graduated from the Naval Academy and was

commissioned as a Surface Warfare Officer. For approximately three months after graduation, I remained at the Naval Academy to teach sailing to junior midshipmen. 9. From approximately September 1999 to February 2000, I attended the

Surface Warfare Officer School in Newport, Rhode Island. 10. On March 15, 2000, I reported for duty on the USS SHILOH. -2DECLARATION OF JENNY L. KOPFSTEIN IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW

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11.

While on board the ship, I found it difficult to have to lie, or tell half-

truths, to my shipmates. Under Don’t Ask, Don’t Tell, answering a simple question could lead to a homosexual servicemember being either investigated or, ultimately, discharged from the military. For example, if a shipmate asks what you did last weekend, a homosexual servicemember can’t react like a normal human being and say, “Hey, I went to a great new restaurant with my partner. You should try it out.” An answer like that would have gotten me kicked out of the Navy. But if you don’t interact like that with your shipmates, they think you are weird, and it undermines working together as a team. 12. When I was closeted, the pain ate away at the core of my being. The

crew of my ship was my extended family, and being in the military is not a 9 to 5 job. A lot of the time when stationed on board a ship, going home is not even an option. I lived, worked, ate and slept with my crew. Keeping parts of my life secret, and separate, was an incredible burden. It is an unnecessary burden, and no American sailor or soldier should be forced to bear it. 13. After being on the ship for approximately four months, on July 17,

2000, I wrote a letter to my commanding officer and told him I am a lesbian because I felt like I was being forced to lie. 14. The next day, my commanding officer called me into his office. He

told me he did not believe me and thought I was just trying to get out of the Navy. I told him that I did not write the letter as part of an effort to get out of the Navy, and that I wanted to stay and serve honorably, and to maintain my integrity by not lying about who I am. 15. After our conversation, my commanding officer wrote a letter to the

Pentagon saying that an investigation should be started. 16. After I wrote the letter, I continued to do my job on the ship to the best

of my ability. Approximately one month after I wrote the letter, the USS SHILOH -3LOSANGELES 870124 v3 (2K)

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departed San Diego for a six-month deployment to the Western Pacific and Arabian Gulf. 17. During this deployment, I qualified as Officer of the Deck, and was

chosen to be the Officer of the Deck during General Quarters, which was a great honor. General Quarters is the announcement made aboard to signal the crew to prepare for battle. 18. After this deployment, the USS SHILOH came back to San Diego and

began to prepare for a future deployment. During this time, I remained on the ship and continued to do my job. 19. In total, I served on the USS SHILOH for approximately 22 months

until January 2002. During all that time, I am proud to say I did not lie. I had come out in my letter officially, and I came out slowly over time to my shipmates. I expected negative responses. I got none. Everyone I talked to was positive, and the universal attitude was that Don’t Ask, Don’t Tell is dumb. 20. During my time on the USS SHILOH, the Captain chose me to

represent the ship in a ship handling competition. I was the only officer chosen from the ship to compete. My sexual orientation was known to my shipmates by this time. To my knowledge, no one serving aboard the USS SHILOH complained about the Captain choosing someone being processed for discharge under Don’t Ask, Don’t Tell. Rather, everyone wished me luck in the competition. I won the competition. 21. During the time I was serving openly aboard the USS SHILOH, I

earned my Sea Service Deployment ribbon and my Surface Warfare Officer pin. During my pin ceremony, the Captain took his own pin off of his chest and pinned it on mine. That was one of my proudest moments. 22. In addition, in approximately May 2001 – during my lengthy

deployment on the USS SHILOH – I was promoted from Ensign to Lieutenant, Junior Grade.
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23.

I tried my best to do my job, and my command was pleased with my

work. My June 2001 Performance Report included these assessments: A “top notch performer;” “a gifted ship handler. Shiloh’s strongest Officer of the Deck. Possesses an instinctive feel for ship control seldom seen in such a junior officer. … When she has the deck, there is never any doubt who is in control;” an “exceptional legal officer;” “ENS Kopfstein is an outstanding officer.” 24. My open service had a positive impact on the ship’s morale. I was

able to treat my shipmates like human beings, and we could interact on a personal level. One time I was walking down the passageway on the ship, and a Senior Chief Petty Officer stopped me and asked, “Ma’am, may I speak to you for a minute?” My first thought was, “Uh-oh, what is this going to be about?” We stepped into an empty room, and he pulled out his wallet. He showed me a picture of a teenage boy: “This is my son, and he’s gay, and I’m really proud of him.” I was so shocked, I didn’t know what to say. Finally, I said, “Wow! Thanks, Senior Chief.” We could not have had that interaction if I was not out. Normal people interact, and talk about their families. 25. My commanding officer wrote in my Fitness Report in 2002 that my

“sexual orientation has not disrupted good order and discipline onboard USS SHILOH.” 26. In January 2002, after the USS SHILOH returned to port, I was

assigned to the Naval Legal Services Office in San Diego, California, where I served until my discharge from the Navy in October 2002. During this assignment, my new commanding officer awarded me the Navy and Marine Corps Achievement Medal, which is an individual award. He knew about my orientation from the first moment I arrived at his command, but it made no difference to him. 27. During this time, I contested my discharge. I invoked my right to an

administrative hearing, instead of resigning my commission. -5LOSANGELES 870124 v3 (2K)

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28.

Nineteen months after I admitted my sexual orientation, a Board of

Inquiry convened to determine whether I should be discharged under Don’t Ask, Don’t Tell. 29. During my service on the USS SHILOH, I had two captains because

there was a change of command while I was there. Even though they were four grades above me, both of them wanted to come and testify at my discharge hearing to say they were opposed to kicking me out. This is what they told the Board of Inquiry: my performance during deployment was “absolutely solid. She did a great job;” “I think this person has an awful lot to offer the Navy…. She’s an incredible officer and she has a lot to offer. I think it would be a shame for the service to lose her.” 30. At the conclusion of the Board of Inquiry hearing, the panel elected to

discharge me. 31. In total, I served openly in the U.S. Navy for two years and four

months, from July 1999 until I was discharged on October 31, 2002. 32. During my service, I received numerous awards in addition to those

already mentioned, including the Meritorious Unit Commendation, Battle “E” Ribbon, National Defense Service Medal, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, Navy Expert Rifle Medal and the Navy Expert Pistol Shot Medal. 33. I made a commitment to the Navy when I joined to serve five years

after graduation from the Naval Academy. I have only gotten to serve three and a half so far. I want the opportunity to live up to my commitment, and serve out the rest of my time with honor. The way I see it, I owe the Navy a year and a half more.

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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: emiller@whitecase.com Email: aakahn@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, vs. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV 04-8425 VAP (Ex) DECLARATION OF ANTHONY LOVERDE IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Judge: Hon. Virginia A. Phillips

Complaint filed: Trial:

October 12, 2004 July 13, 2010

DECLARATION OF ANTHONY LOVERDE I, Anthony Loverde, declare as follows: 1. I am over 18 years old and, if called as a witness, I would be able to

testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration. 2. I served as an active duty member of the United States Air Force from

February 13, 2001 to July 13, 2008.

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3.

When I enlisted in the United States Air Force in February 2001, I was

21 years old. When I enlisted, I had a rank of E-1 (Airman). I originally committed to remain in the Air Force until February 2007. 4. I was assigned to Lackland Air Force Base in San Antonio, Texas for

basic training where I remained until April 2001. Upon completion of basic training, I was promoted to the rank of E-3 (Airman First Class). I was then sent to Keesler Air Force Base in Biloxi, Mississippi for further training where I remained until December 2001. 5. In December 2001, I was assigned to Ramstein Air Base located near

Kaiserslautern, Germany. While there, I served as a member of the 86th Maintenance Squadron. I worked as a Precision Measurement Equipment Laboratory technician and was responsible for calibrating weapons systems in the United States Air Forces in Europe, Southwest Asia, and the Continental United States. 6. While serving in Germany, I did not tell any members of my command

that I am homosexual. But I also did not go to great lengths to conceal my sexuality through my actions. For example, in December 2001, I attended an off base military holiday party in Germany wearing a blue velvet shirt, black leather pants and sporting spiked hair. At the party were approximately forty enlisted members I worked with, including my supervisors from the ranks of Major Sergeant (E-7) to Chief Master Sergeant (E-9). Additionally, when members of my command asked me what kind of girls I liked, I would say “rugged ones with broad shoulders.” 7. As a reward for my exceptional work at Ramstein Air Base in

Germany, I was awarded early promotion to rank E-4 (Senior Airman), deemed a distinguished graduate from the United States Air Force Airman Leadership School, and obtained a 7-level craftsman proficiency badge within my first four years of service.
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8.

In August 2004, while at Ramstein Air Base in Germany, I was also

promoted to Staff Sergeant (E-5). 9. In January 2005, I was transferred from Ramstein Air Base to Edwards

Air Force Base in Edwards, California. At Edwards Air Force Base, I was a Precision Measurement Equipment Laboratory technician. 10. From September 2005 to January 2006, I deployed to Al Udeid Air

Base in Qatar in support of Operation Enduring Freedom and Operation Iraqi Freedom. While in Qatar, I held the position of Precision Measurement Equipment Laboratory Scheduler, Non-Commissioned Officer, in charge of Production Control. I maintained coordination between 201 military units and the Air Force requirements for electronic calibration and measurements with logistics ranging through Africa, Iraq, Afghanistan, Kuwait and eight other countries. 11. In January 2006, I returned to Edwards Air Force Base. Given that my

enlistment was to expire in February 2007, I began considering whether I would leave the Air Force in 2007. Although I desired to remain in the Air Force, I found it extremely difficult to not be able to declare that I am homosexual to my fellow soldiers. 12. I weighed my options and decided that if I were to pursue a new career

field in the Air Force, I may be better able to serve my country while concealing my sexuality. I re-enlisted so that I would have the time to receive additional training in a new career field. 13. In July 2006, I applied to be trained as an aircrew member (commonly

known as a “loadmaster”) on a Lockheed C-130 Hercules aircraft and was accepted. In June 2007, I completed my loadmaster training. 14. In July 2007, I was transferred from Edwards Air Force Base to the

37th Airlift Squadron at Ramstein Air Base in Germany.

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15.

In December 2007, I deployed to Ali Al Salem Air Base in Kuwait to

serve with the 386th Expeditionary Operations Group in support of Operation Iraqi Freedom. I remained in Kuwait until April 2008. During this deployment, I flew sixty-one combat missions into Iraq, during many of which I faced small arms fire, surface to air missiles and inclement weather. As a result of these combat missions, I was awarded two Air Medals. 16. While I served in Kuwait and Iraq, I endured the constant harassment

of my supervisor, who repeatedly made homophobic remarks to me and my unit. Although I strongly desired to speak out in defense of my concealed sexuality in these instances, I repeatedly resisted the urge to do so in order to protect my career. 17. In April 2008, I returned to Ramstein Air Base in Germany. After

years of concealing my sexuality and enduring a slew of homosexual remarks made by my supervisor while I was in Kuwait and Iraq, I decided that I could no longer conceal my sexuality from my command. I sent an email to my First Sergeant and later my Commander advising them that I am homosexual and could no longer abide by Don’t Ask, Don’t Tell, but still wanted to serve. Although I had told a handful of members of the Air Force that I am homosexual, I had never come out to anyone in my command. 18. Once news of my homosexuality spread to the members of my

command, they told me they were not surprised. They said it was an unspoken truth that I am homosexual. 19. After I came out, three servicemembers called me to apologize for

making homophobic comments prior to me revealing my sexual orientation. One servicemember told me that I had changed the way he views homosexual people. He told me he would be honored to be deployed and serve with me any day and any time.

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20.

I was removed from flying status in April 2008. Although I remained

on active duty, I was assigned to an administrative desk job. 21. All of my supervisors from the ranks of Major Sergeant (E7) to Chief

Master Sergeant (E9) wrote character reference letters that requested my retention. Copies of these character reference letters are attached hereto as Exhibit “A.” 22. I served as an openly homosexual man for a couple of months. During

this time, I made sure that everybody knew I am homosexual and was being forced to leave the Air Force because of it. During this time, no servicemembers approached me to tell me they had a problem with my sexual orientation. 23. I signed a waiver of my right to contest my discharge so that I would

be honorably discharged. 24. 13, 2008. 25. Within three weeks of separation, I accepted employment in Iraq to I was honorably discharged from the United States Air Force on July

support the United States Army as a defense contractor. I held several posts in Iraq and Afghanistan and was greatly respected by my military unit as an openly homosexual contractor. 26. My contracting job was the same job that I had performed when I was

in the Air Force—I worked in the calibration lab. The only difference was that Don’t Ask, Don’t Tell did not apply to my civilian work. As a contractor, I worked alongside the same Airmen that I had worked with on active duty in the Air Force, but this time, as an openly homosexual man. Everyone I worked with was very accepting of my openly homosexual status and it did not impact the mission. My sexual orientation was a non-issue. 27. I left my contracting job and returned to California in May 2009.

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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: emiller@whitecase.com Email: aakahn@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, vs. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV 04-8425 VAP (Ex) DECLARATION OF JOSEPH CHRISTOPHER ROCHA IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Judge: Hon. Virginia A. Phillips

Complaint filed: Trial:

October 12, 2004 July 13, 2010

DECLARATION OF JOSEPH CHRISTOPHER ROCHA I, Joseph Christopher Rocha, declare as follows: 1. I am over 18 years old and, if called as a witness, I would be able to

testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration.

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2.

I am a U.S. Navy veteran who served twenty-eight months in the

Middle East as an explosive detection dog handler. My job was to train and utilize dogs to keep explosives, narcotics, and insurgents out of Iraq and Afghanistan. 3. I enlisted in the United States Navy on April 27, 2004. I started basic

training at Naval Station Great Lakes in Chicago, Illinois on September 15, 2004. 4. After basic training, I went to Lackland Air Force Base in San

Antonio, Texas where I began training as a master at arms in November 2004. 5. Masters at arms are Navy security specialists who perform

antiterrorism, force protection, physical security, and law enforcement duties on land and at sea. Masters at arms are the Navy’s security and force protection professionals. A master at arms may operate a force protection watercraft, direct an investigation, control a base access point, or supervise a K-9 asset. 6. After I completed my master at arms training at Lackland Air Force

Base, which lasted approximately three months, I reported to the Naval Support Activity Bahrain, which is a U.S. Navy base situated in the Kingdom of Bahrain and is home to the U.S. Naval Forces Central Command and the U.S. Fifth Fleet. It is the primary base in the region for the naval and marine activities in support of Operation Enduring Freedom and Operation Iraqi Freedom. 7. During my first month in Bahrain, I served as a master at arms.

Thereafter, I started shadowing dog handlers full time to see if I was a good candidate to attend the military working dog school. I was deemed a good candidate. 8. I returned from Bahrain to Lackland Air Force Base in San Antonio,

Texas in September 2005 to attend the military working dog school. I completed my military dog school training at the end of 2005 approximately. I was then sent back to the Naval Support Activity Bahrain as a dog handler in an elite and small community of K-9 handlers. -2LOSANGELES 869676 v3 (2K)

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9.

In total, including the initial time I served as a master at arms, I was

assigned to the Middle East for twenty-eight months. 10. Approximately one month into my time in the Middle East, my Kennel

Master and other servicemembers began to continually harass me. They would repeatedly ask me if I was homosexual, and I refused countless times to answer any of them with a “yes” or a “no.” My refusal to answer was deemed to be a “yes” answer. 11. With the exception of the first month, I was harassed for the entire

duration of my time in the Middle East. My Kennel Master and other servicemembers would repeatedly make graphic homophobic remarks and comments that were clearly directed to me. Their remarks made me incredibly uncomfortable and were very hurtful. 12. The harassment I endured was horrifying. For example, one day in the

Middle East, I was ordered by my Kennel Master to get down on my hands and knees and simulate oral sex on a person working in the kennel. We were supposed to pretend that we were on a sofa and that the dogs were catching us in the act. Over and over, with each of the dogs in our unit, I was forced to endure this scenario, much of which was captured on video. 13. In other instances, the following occurred: (a) I was hosed down in

full uniform, (b) I was tied to a chair, fed dog food and left in a kennel with feces, (c) I was spanked for my birthday, (d) homosexual pornography was saved on my computer as the screensaver, and (e) a standing rule was established that I was supposed to kneel before dogs and tell them I was not worthy. 14. Despite the constant harassment I endured, I proved my worth by

excelling at my job performance. My written evaluations described me as a model servicemember, and I ultimately earned a Navy Marine Corp Achievement Medal for my time as a handler. -3LOSANGELES 869676 v3 (2K)

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15.

After I completed my assignment in the Middle East, I was selected to

attend the United States Naval Academy Preparatory School in Newport, Rhode Island (“NAPS”), which was a tremendous honor. I had always dreamed of attending the U.S. Naval Academy, and graduation from NAPS’ one-year program would guarantee me admission into the U.S. Naval Academy. 16. I only remained at NAPS for approximately five months. After

reflecting on all the abuse I endured as a product of my adherence to Don’t Ask, Don’t Tell, I realized that Don’t Ask, Don’t Tell had endangered my life in the past and would probably continue to do so in the future, as it would not allow me to declare my homosexuality and stand up for myself if, and when, I was abused in the Naval Academy. Additionally, I realized that a career of service under Don’t Ask, Don’t Tell would be a forfeiture of my basic human rights. It would be a forfeiture of basic job security, peace of mind, and meaningful relationships, particularly with my fellow straight servicemembers whom I was forced to deceive and betray by hiding my homosexuality. 17. After completing a six-week officer candidate boot camp at NAPS, my

commanders said they wanted to offer me a leadership role. Instead, I asked to be removed from NAPS in a statement I addressed to the NAPS legal officer dated September 18, 2007, a copy of which is attached hereto as “Exhibit A.” 18. After my statement was received by NAPS, I was encouraged by a

commanding officer at NAPS, apparently at the direction of the U.S. Naval Academy, to withdraw my statement. Additionally, I was told that if I withdrew my statement, my admission into the Naval Academy would not be affected (despite me having given the Navy an official statement disclosing that I am homosexual). I declined.

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DAN WOODS (State Bar No. 78638) EARLE MILLER (State Bar No. 116864) AARON KAHN (State Bar No. 238505) WHITE & CASE LLP 633 W. Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 Email: dwoods@whitecase.com Email: emiller@whitecase.com Email: aakahn@whitecase.com Attorneys for Plaintiff Log Cabin Republicans UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LOG CABIN REPUBLICANS, a nonprofit corporation, Plaintiff, vs. UNITED STATES OF AMERICA and ROBERT M. GATES (substituted for Donald H. Rumsfeld pursuant to FRCP 25(d)), SECRETARY OF DEFENSE, in his official capacity, Defendants.

Case No. CV 04-8425 VAP (Ex) DECLARATION OF STEPHEN VOSSLER IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW Judge: Hon. Virginia A. Phillips

Complaint filed: Trial:

October 12, 2004 July 13, 2010

DECLARATION OF STEPHEN VOSSLER I, Stephen Vossler, declare as follows: 1. I am over 18 years old and, if called as a witness, I would be able to

testify competently, of my own personal knowledge, to the truth of the matters contained in this declaration. 2. I am a straight man from southeastern rural Nebraska. I served as an

active duty member of the United States Army from June 2001 to June 2006.

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3.

I enlisted in the United States Army in November 2000. Upon

enlistment, I was assigned to Fort Leonard Wood in Pulaski County, Missouri for basic combat training. I remained at Fort Leonard Wood from June 20, 2001 to September 7, 2001. 4. From September 7, 2001 to February 25, 2003, I trained as a Korean

language cryptologic linguist at the Defense Language Institute of the Presidio in Monterey, California. 5. At the Defense Language Institute, I shared a room with a homosexual

man for nine months who was in the process of being discharged under Don’t Ask, Don’t Tell. During the time we lived together, I observed that the process of being discharged was emotionally draining on my roommate, and caused him to be alienated from our unit because it gave him the stigma of being a bad soldier. 6. Before joining the Army, I had not extensively interacted with an

individual I knew to be homosexual. That being said, I had no issues living with my homosexual roommate. 7. During my training at the Defense Language Institute, I also developed

a close friendship with a colleague in my unit, Specialist Jarrod Chlapowski (“Specialist Chlapowski”), who I met in March 2002. Specialist Chlapowski was a decorated and accomplished member of the Armed Forces. He finished second in his class at the Defense Language Institute, supported more than 300 sensitive reconnaissance operation missions and was awarded both the Army Achievement Medal and the Army Commendation Medal. 8. Approximately five months after meeting Specialist Chlapowski, I

learned that Specialist Chlapowski is homosexual when his roommate told me and showed me a picture of Specialist Chlapowski hugging another man. When I told Specialist Chlapowski a short time after that I knew he is homosexual, Specialist Chlapowski did not try to deny his sexual orientation. Rather, Specialist Chlapowski admitted his sexual orientation with full knowledge it could potentially -2LOSANGELES 867903 v2 (2K)

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result in his discharge from the military under Don’t Ask, Don’t Tell. I quickly developed a greater sense of respect for Specialist Chlapowski because he was willing to be honest with me about his sexual orientation. 9. In late-February 2003, I left the Defense Language Institute and was

assigned to Goodfellow Air Force Base in San Angelo, Texas, just three months after Specialist Chlapowski had been assigned to the same duty station. 10. While at Goodfellow Air Force Base, Specialist Chlapowski and I

learned the technical aspects of being cryptologic linguists. Cryptologic linguists are responsible for performing and supervising the detection, acquisition, identification and exploitation of foreign communications using signals equipment. 11. 12. I remained at Goodfellow Air Force Base until mid-July 2003. After I left Goodfellow Air Force Base, I spent a brief amount of time

in Nebraska recruiting for the Army. Then, on August 4, 2003, I reported to Camp Humphries in the Republic of Korea. 13. When I arrived at Camp Humphries, I worked as a Korean linguist,

voice signals interceptor. Specialist Chlapowski had been assigned to Camp Humphries approximately three months earlier. Although we were in different units at Camp Humphries, we worked in the same building and would sometimes hang out together during our off time. 14. Specialist Chlapowski remained at Camp Humphries until

approximately May 2004. I remained at Camp Humphries until August 3, 2004. From there, we were both assigned to Fort Lewis near Dupont, Washington. 15. 16. While at Fort Lewis, we trained in tactical military intelligence. While at Fort Lewis, Specialist Chlapowski and I were in two all male

combat units. Specialist Chlapowski was dating a civilian man at the time. Specialist Chlapowski spoke to me about the man he was dating when he and I were alone. However, when other members of the unit were around, Specialist -3LOSANGELES 867903 v2 (2K)

DECLARATION OF STEPHEN VOSSLER IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW

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Chlapowski and I used a girl’s name to refer to the man to conceal Specialist Chlapowski’s homosexuality. 17. Members of our unit often told homosexual jokes. These jokes made

Specialist Chlapowski and I feel very uncomfortable, given that we were the only two members of the unit aware of Specialist Chlapowski’s homosexuality. 18. From September to approximately November 2005, Specialist

Chlapowski and I were roommates at Fort Lewis. Specialist Chlapowski’s homosexuality was not an issue for me. At times, we would sit and talk in our room after we had taken our respective showers wearing nothing except towels around our waists. I never felt that Specialist Chlapowski acted inappropriately. To the contrary, Specialist Chlapowski acted as any other heterosexual solider would. 19. When Specialist Chlapowski’s enlistment term ended in approximately

November 2005, he chose not to reenlist because of the burden of Don’t Ask, Don’t Tell. 20. I remained at Fort Lewis until June 26, 2006. At that point, I

voluntarily left active duty in the United States Army. 21. I immediately joined the Army National Guard. On June 26, 2009, I

voluntarily left the Army National Guard. 22. As a result of my service, I was awarded the Army Commendation

Medal, the Army Achievement Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal, the Korea Defense Service Medal, the Army Service Ribbon and the Overseas Service Ribbon.

-4LOSANGELES 867903 v2 (2K)

DECLARATION OF STEPHEN VOSSLER IN SUPPORT OF PLAINTIFF LOG CABIN REPUBLICANS’ SUPPLEMENTAL BRIEF ON APPLICATION OF WITT STANDARD OF REVIEW

Case 2:04-cv-08425-VAP -E Document 202-6

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