2:04 CV 08425 TrialDay8Vol2

Case 2:04-cv-08425 Trial Day 8 Vol 2
1655
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION
- - -
HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING
- - -
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LOG CABIN REPUBLICANS,

a nonprofit corporation,
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Plaintiff,
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vs.
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UNITED STATES OF AMERICA and
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ROBERT M. GATES, SECRETARY OF
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DEFENSE, in his official capacity, )
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Defendants. )
___________________________________)
No. CV 04-8425-VAP(Ex)
Trial Day 8
Volume II
Pages 1655-1693
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REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS
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Riverside, California
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Friday, July 23, 2010
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10:26 A.M.
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THERESA A. LANZA, RPR, CSR

Federal Official Court Reporter
3470 12th Street, Rm. 134
Riverside, California 92501
(951) 274-0844
WWW.THERESALANZA.COM
Trial Day 8, Volume II
1656
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APPEARANCES:
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On Behalf of Plaintiff:
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WHITE & CASE
BY: Dan Woods
BY: Earle Miller
BY: Aaron A. Kahn
633 West Fifth Street,
Suite 1900
Los Angeles, California
213-620-7772
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90071-2007
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On Behalf of Defendants:
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UNITED STATES DEPARTMENT OF JUSTICE

Civil Division, Federal Programs Branch
BY: Paul G. Freeborne
BY: Joshua E. Gardner
BY: Ryan Bradley Parker
BY: W. Scott Simpson
20 Massachusetts Avenue, NW
Room 6108
Washington, DC 20001
202-353-0543
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-AND-
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UNITED STATES ARMY

Litigation Division
BY: Major Patrick Grant
Litigation Attorney
901 N. Stuart, Suite 400
Arlington, Virginia 22203
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I N D E X
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Closing Arguments.............................
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Riverside, California; Friday, July 23, 2010; 10:26 A.M.
-oOo-
THE COURT:
Mr. Freeborne, you may proceed.
Thank you.
DEFENSE'S CLOSING ARGUMENT
MR. FREEBORNE:
From the outset of this case, we've told the Court
Your Honor, may it please the Court.
that, first, Log Cabin lacks standing to bring this
constitutional challenge and, second, Log Cabin has failed to
10
bring a legally cognizable challenge to the "Don't Ask, Don't
11
Tell" statute and implementing regulations.
12
13
points.
I'll start with standing.

Mr. Woods gave short shrift to the subject, for
15
obvious reasons.
16
confirms that Log Cabin cannot identify a single member who
17
would have the right to challenge the policy in his or her own
18
right.
The testimony that you have now heard
10:27
It is now undisputed that Mr. Nicholson has never
20
paid dues to Log Cabin, a requirement for membership under
21
Log Cabin's own articles of incorporation.
22
10:26
Two weeks of trial has now confirmed both of these
14
19
10:26
THE COURT:
Excuse me for interrupting you, but the
23
testimony and the evidence is that what's required is -- the
24
exact wording is not "annual dues."
25
contribution annually.
10:27
It's by making a financial

10:28
1659
MR. FREEBORNE:
THE COURT:
Right.
Your Honor, I'm --
And so the testimony by -- I think it was
Mr. Meekins, who was on the national board, I believe, but I
think he also testified he was a lawyer, but he had an advanced
degree, a master's in business administration, if I recall
correctly.
But, in any event, his testimony was that since the
bylaws say making a financial contribution annually, that could
be other than a monetary contribution.
But it doesn't use the
10
words -- he talked about an in-kind contribution.
11
event, it doesn't say "dues"; it says an annual financial
12
contribution -- I think it says "financial contribution
13
annually."
14
MR. FREEBORNE:
But, in any
all, Mr. Meekins did not purport to speak with authority on
16
what the articles require one way or the other.
17
he hadn't reviewed them in years.

Secondly --
19
THE COURT:
20
MR. FREEBORNE:
21
The point that I was moving to, Your Honor, is that
22
they're basing standing upon Mr. Nicholson's payment of dues.
23
They rely upon his honorary membership as being the basis.
25
10:29
He said that
18
No.
10:28
Your Honor, to be clear, first of
15
24
10:28
But they're in evidence.

Oh, absolutely.
10:29
Our position is, we believe that the articles are

clear, that they do require the payment of dues.
To the extent
10:29
1660
that the bylaws are inconsistent with the articles, under D.C.
law the articles of incorporation control.
Now, we understand that the Court has ruled on this
issue, and I wanted to quickly move to the bylaws.
great reliance now upon the bylaws, but Log Cabin's reliance
upon the bylaws only serves to exacerbate the flaws that we see
in standing.
8
9
They place
Pursuant to the bylaws, which is JX-109, to be a

member of LCR one must be a registered Republican, involved in
10
the state Republican party, or identified with the Republican
11
party.
12
13
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15
16
upon for Mr. Nicholson's membership.

But Your Honor will recall that Mr. Nicholson
candidly admitted in his testimony that he is none of these.
THE COURT:
18
that he votes or has voted for Republican candidates.
19
term "identify" with the Republican party doesn't require -- I
20
mean, it's written in the disjunctive; correct?
21
don't require all members to be registered as Republicans.

MR. FREEBORNE:
So the
So the bylaws
10:31
Your Honor, at 1219 of the
23
transcript, he was asked, "Have you ever, at any time, publicly
24
self-identified as a member of the Republican party?"

"I don't believe that I have."
10:30
Well, I don't think you asked him about
identifying with the Republican party, because he did testify
25
10:30
Again, that's under the bylaws, that they now rely
17
22
10:30
10:31
1661
That's his testimony.
And, again, that is a requirement for membership,
under their theory.
The bylaws require that as a precondition.
So, again, regardless of whether or not the Court
looks to the articles, as we would urge the Court to do, or the
bylaws, Mr. Nicholson is not a member of Log Cabin, and,
therefore, cannot provide the basis for associational standing.
8
9
Indeed, the evidence is worse, though, Your Honor,

viewed in the most favorable light for Log Cabin, the testimony
10
of Mr. Ensley.
11
simply attempted to manufacture associational standing by
12
making Mr. Nicholson a member on the very day that it filed the
13
amended complaint in this action.
14
15
And Mr. Nicholson makes clear that Log Cabin
THE COURT:
correct?
10:32
MR. FREEBORNE:
17
THE COURT:
18
complaint was filed?
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21
10:32
You're talking about Mr. Nicholson still;
16
19
10:31
Yes.
Which was the date the first amended
MR. FREEBORNE:
That's right.
And that's the date
that Your Honor has found to be the operative date.

THE COURT:
Exactly.
But, according to his
22
testimony, it was the date that he spoke at the convention, the
23
national convention that year.
24
MR. FREEBORNE:
25
But it's a little too cute for them to rely upon
10:32
That is correct, Your, Honor.
10:32
1662
Mr. Nicholson as a member, and they've attempted to manufacture
standing on the very day that he became a member.
basis for their standing.
looking for a case of manufactured standing, this is the
historic case of manufactured standing.
that should be countenanced by the Court.
And that's our point.
That is the
If you're
And we don't believe
Now, turning to the anonymous John Doe.
We believe that the evidence has shown that Log Cabin
has failed to carry its burden of showing that Doe was a member
10
of Log Cabin when the amended complaint was filed in 2006.
11
10:33
Mr. Meekins and Mr. Bradley were both asked if Doe
12
had paid dues since 2004, and neither could say that he has
13
done so.
14
that the operative date for determining standing is the date of
15
the amended complaint, Log Cabin cannot carry its burden of
16
showing that Doe was a member on April 28, 2006, again, when
17
the amended complaint was filed.
18
10:33
Thus, even if the Court were correct in its ruling
THE COURT:
Because, according to Mr. Meekins and the
19
other witness, his dues were paid shortly before or after
20
Labor Day in 2004, and for one year; so there would be about a
21
six-month gap between September of 2005, when that one year
22
would have elapsed, and six months after that, when the amended
23
complaint was filed.
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MR. FREEBORNE:
25
And, again, the plaintiff has the burden of
10:33
10:34
Correct, Your Honor.
10:34
1663
demonstrating standing as a threshold matter, particularly here
where they're presenting a constitutional challenge.
THE COURT:
All right.
So I understand the timing issue.
But what the
testimony was, in addition to that, is that when -- first of
all, I agree with you that there was no other testimony about
Colonel Doe paying dues except for that one first time.
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9
But there was questioning of both of those two

witnesses about what happens when the dues aren't paid at any
10
point in time, whether it's the first year or five years or ten
11
years, because this organization was founded in, I believe,
12
1978; so it could be 20 years -- so what happens to a member
13
when their dues are delinquent?
14
nothing really; we don't take them off our books; they're still
15
on the mailing list -- or now it's an e-mail list -- but
16
nothing really happens and we still informally consider them
17
members.
10:35
And the testimony was, Well,
18
So I guess my question to you is, in light of the
19
case law about the treatment of informal members and how an
20
informal membership process can give standing, isn't that
21
testimony enough to confer standing here, even accepting your
22
argument that the bylaws require dues?
23
10:35
10:36
10:36
In the case law, there's a number of cases that deal
24
with what they call an informal membership process; Concerned
25
Citizens Around Murphy v. Murphy Oil, which is a 2010 case,
10:37
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686 F. Supp. 2d 663, which holds that corporate formalities and
formal membership structures are not constitutional
requirements for associational standing.
on the Hunt case, which, of course, the defense has been citing
on the standing issue all along.
And that case relies
10:37
There's a Fifth Circuit case, Friends of the Earth v.
Chevron Chemical.
There's a long list of cases.
And then
there's a line of cases, again relying on Hunt, that says that
the Court should apply a generous standard for groups that are
10
protection and advocacy organizations which have a discrete set
11
of beneficiaries.
12
issue in Doe v. Stincer, 175 F.3d 879.
13
And the Eleventh Circuit dealt with that
So I guess, going back to your argument, which
14
really -- your specific point right now is that there's no
15
evidence that the dues were not paid after that first year.
16
But yet, the evidence is also that the organization still
17
treated anyone who didn't continue to pay dues as a member,
18
continued to send them mailings and include them in e-mails and
19
so forth.
20
10:39
Isn't that enough to confer standing?

MR. FREEBORNE:
Your Honor, with regard to the
21
factual predicate, Mr. Hamilton testified at Page 57 of the
22
transcript, at Line 4:
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10:38
"QUESTION:
So if a member fails to pay dues under
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the articles of incorporation, they are no longer a member of
25
Log Cabin Republicans; is that correct?
10:39
10:39
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ANSWER:
Yes."
So the factual predicate doesn't exist.
THE COURT:
But wasn't there further testimony
besides that one question and answer?
didn't he?
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10:40
MR. FREEBORNE:
Your Honor.
He elaborated on that,
Not that I see in the transcript,
That's his testimony.
And to the extent Log Cabin's practices are

inconsistent with the articles of incorporation, of course
10
those would be ultra vires.
11
looked at some of the cases Your Honor has referenced.
12
believe Doe v. Stincer, in that case, standing was afforded
13
pursuant to the statute, if I recall.
14
It's a corporation.
I haven't
I
Also, as Your Honor recognized in the tentative
15
ruling on standing, standing must be continuous.
16
that principle that applies here as well.
17
have to show that they're a member each year during the
18
duration of the lawsuit for associational standing to be
19
present.
20
21
10:40
So there's
10:40
In other words, they
And then, if I could move to the next point,
10:40
Your Honor.
22
THE COURT:
23
MR. FREEBORNE:
24
the bylaws in this case.
25
extent that they're relying upon John Doe to afford standing,
Go ahead.
Again, the plaintiff is relying upon
That's their theory.
And to the
10:41
1666
the bylaws undermine that position.
Mr. Meekins was asked whether or not Mr. Doe is a
registered Republican.
or the other.
standing.
And Mr. Meekins could not say one way
And, again, they have the burden of establishing

10:41
In fact, all Mr. Meekins could say was that he
assumed Mr. Doe was a Republican because Doe was a member of
Log Cabin.
is incorrect, as demonstrated by the testimony of
But we know, of course, such a blanket assumption
10
Mr. Nicholson, who acknowledged that he was not a registered
11
Republican or otherwise affiliated with the Republican party.
12
Accordingly, to the extent the Court concludes that
13
Log Cabin may rely upon the bylaws to establish its membership
14
qualifications, Log Cabin has failed to establish that Doe is a
15
member under the bylaws.
16
10:41
10:42
Given this testimony, the Court should now resolve
17
this case as a matter of law and find that Log Cabin lacks
18
standing.
19
But even if Log Cabin could sustain its burden of
20
demonstrating standing and this Court had subject matter
21
jurisdiction, defendants are entitled to judgment on the
22
merits.
23
fail as a matter of law.
24
trial, in this facial constitutional challenge, is
25
inappropriate, as the issue raised in this case is a question
10:42
Log Cabin's due process and First Amendment claims
As we've repeatedly explained, the
10:42
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of law.
Court to look at the face of the statute, implementing
regulations, and legislative history.
A facial challenge to a federal statute requires the
THE COURT:
But, also, as I questioned Mr. Woods, the
Court also is directed to look at the effect of the challenged
statute, comparison to prior law, facts surrounding the
enactment of the statute, the stated purpose of the law, and
the record of the proceedings.
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MR. FREEBORNE:
In determining the purpose,
Your Honor, we would agree with all of that.

THE COURT:
No.
10:43
It's not just in determining the
purpose that the Court looks at those things.

MR. FREEBORNE:
Your Honor, the case law makes very
clear that -THE COURT:
This is from the case law.
It's a direct
16
quote from the cases the government cited to the Court,
17
including O'Bryan.
18
MR. FREEBORNE:
determining what the Court is to look at in terms of purpose.
20
It specifically says you're not to look at motivation, which, I
21
believe, we -THE COURT:
I agree.
10:43
Not to look at motivation, but
23
to determine constitutionality in a facial challenge, those are
24
the things that the Court is directed to look at, including the
25
effect of the challenged statute.
10:43
Well, but O'Bryan, again, that was
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10:43
10:44
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So the government's argument that it has made
throughout this case, and which it has relied on to contest the
admission of nearly every exhibit and most of the testimony,
overlooks that the Court is directed to look at the effect of
the challenged statute as well as the other things.
quoted from O'Bryan.
but also, the Ninth Circuit case you've cited in your papers,
and I think also here, City of Las Vegas v. Foley; more
recently 1998, Colacurcio v. City of Kent; Arlington Heights v.
And I just
O'Bryan is still, of course, good law,
10
Metropolitan Housing Corporation.
11
not a First Amendment challenge.
12
evidence are referred to in not just a First Amendment context,
13
but in other contexts as well.
14
MR. FREEBORNE:
I bring that up because it's
Again, it's our position, Your Honor,
that a facial analysis presents purely a legal question that
16
the Court must resolve based upon the face of the statute.
17
Otherwise, the Court is venturing into an as-applied challenge.

THE COURT:
No.
10:45
In fact, O'Bryan, which has -- in
19
the paragraph in O'Bryan that the government has cited
20
repeatedly, the one that has the language about -- I think it's
21
hazardous waters -- hazardous matter, inquiring into
22
congressional motives -- it's very close to that passage, where
23
the language I'm quoting, that talks about the Court looking
24
into these other sources, that the Court is directed to examine
25
the effect of the statute, for example, which is the evidence
10:45
I mean, these sources of
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10:44
10:45
10:46
1669
1
2
that's been presented throughout this trial.

O'Bryan doesn't stand for the proposition that the
Court look only at the face of the statute in making its
determination.
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MR. FREEBORNE:
Your Honor, we'll have to
respectfully disagree with that.

It's our position that the face of the statute,
including a legislative history, no doubt -THE COURT:
Right.
The legislative history is the
10
last of the sources, as I mentioned a few moments ago to your
11
colleague, to your learned opponent, that the Court -- in the
12
cases that's you've relied on and cited to the Court, the
13
legislative history is the last -- not necessarily the least,
14
but the last of the things that the Supreme Court lists that a
15
court is directed to examine.
16
10:46
MR. FREEBORNE:
10:47
Again, it's our position you look to
17
those things to determine purpose, not -- and, again, we've had
18
a number of discussions about motivation, which I think we've
19
squared away.
20
to look at facts in the context of a facial challenge, because,
21
again, to do so would require the Court to be engaging in an
22
as-applied analysis, which the case law says, Salerno and other
23
cases, Washington State Grange, that, A, facial challenges are
24
disfavored, and, B, that the reason constitutional adjudication
25
should take place through as-applied cases is so the Court is
10:46
But we don't read O'Bryan as allowing the Court
10:47
10:48
1670
focused on a limited inquiry, as opposed to giving expansive
rulings on the constitutionality of a statute.
We would respectfully submit that in this case, the
Court should not be hearing facts and testimony in the context
of a facial challenge that runs afoul of all of those
principles, and in a perverse way, flips, for example, Salerno
on its head, because now you've heard, essentially, a policy
debate in this case; a debate that should occur in Congress,
not before a court.
10
So that's our position, Your Honor.
11
If I could, I'd like to now address the
12
10:48
Witt standard.
13
I think we've been clear on this as well.
14
We do not agree as an initial matter that the
15
Witt standard applies.
16
June 9, 2009 decision, applying the Witt test to a facial
17
challenge is contrary to the explicit terms of the Ninth
18
Circuit's decision in Witt.
19
subject to a heightened review, the tests set forth in Beller
20
and Cook is the appropriate test, not the as-applied analysis
21
set forth in Witt.
22
10:48
As the Court itself noted in its
10:48
And even if the statute were
10:49
Now, again, Mr. Woods mentioned the Casey case, that
23
that should -- I believe he said that that should be the case
24
that controls this case.
25
the undue burden analysis; and Justice O'Connor said in that
Your Honor will recall that that's
10:49
1671
context, if a woman's right to an abortion is infringed upon --
one woman's right is infringed upon, that's sufficient; Salerno
does not control.
But Your Honor is also aware of the S.D. Myers case
from the Ninth Circuit, which specifically recognized that the
test set forth in Casey is unique.
context.
8
9
10
It only applies in that
Otherwise, Salerno applies on its terms.

We would ask this Court to keep its eye on Salerno,
because we believe Salerno controls this case and plaintiff

can't meet its burden under Salerno.
11
10:50
Now, the Court mentioned at the beginning of the
12
trial it was unsure how Salerno applied after the application
13
of Witt.
14
this confusion is borne by the misapplication of Witt in the
15
first instance.
16
And we share the Court's confusion but believe that
10:50
Accordingly, we would respectfully request that the
17
Court reconsider its determination that Witt applies in a
18
facial constitutional challenge; and to the extent it believes
19
that heightened scrutiny applies, apply it in the manner
20
consistent with Beller, Cook, and Salerno.
21
10:50
In any event, Log Cabin has not carried its burden of
22
rebutting every conceivable application of the statute, as it
23
is required to do under Salerno.
24
25
10:49
The Ninth Circuit, in Witt, has already found that

"Don't Ask, Don't Tell" serves a legitimate governmental
10:51
1672
purpose:
Military effectiveness.
As an aside, Your Honor, that rebuts Mr. Woods'
continued arguments that the statute was somehow based upon
animus, as does Philips.
that argument and rejected it out of hand.
And Philips specifically addressed

10:51
Now, in addition, Congress determined in 1993, after
hearing weeks of testimony and dozens of lay and expert
witnesses on both sides of the issue, and after having received
a number of studies and documents, such as the Crittenden
10
Report, the PERSEREC studies, and the RAND report, that
11
homosexual conduct posed an unacceptable risk to unit cohesion
12
and military effectiveness.
13
Log Cabin's experts in this case, Dr. Korb, told Congress in
14
1993 there was a probability that unit cohesion would be
15
temporarily negatively affected if homosexuals were allowed to
16
serve openly in the military.
Indeed, it is notable that one of
17
He further told Congress that one wouldn't know the
18
impact on unit cohesion until the policy is actually changed.
19
10:51
10:52
Apparently, Dr. Korb's willing to accept that risk
20
that a change in policy may be insignificant.
Congress was
21
not.
22
Dr. Marlowe and Dr. Henderson, and military leaders, such as
23
Colin Powell, was not willing to accept that risk.
24
judgment on this issue is well supported by the legislative
25
history.
10:52
Congress, after hearing from sociologists, such as
Congress's
And after extensive hearings on the policy, Congress
10:52
1673
likewise determined that the "Don't Ask, Don't Tell" policy was
the least restrictive means of protecting against that risk.
In reaching this judgment that "Don't Ask, Don't
Tell" was necessary, Congress also considered testimony
concerning the issue of sexual tension.
Drs. Henderson, Marlowe, and Korb all agreed that it was
appropriate to separate men and women in the armed forces in
terms of living arrangements because of sexual tension, that
sexual tension was determined to have an adverse effect on unit
10
For example,
cohesion.
10:53
11
Congress also heard testimony that sexual tension
12
similarly arises between heterosexuals and homosexuals, and
13
would likewise have a negative impact upon unit cohesion.
14
Congress also considered the issue of privacy in
15
connection with allowing open homosexuals to serve in the
16
military.
17
enlisted servicemembers that there is little privacy in the
18
military, and, accordingly, the little privacy that does exist
19
is highly valued by those servicemembers.
20
10:53
Congress heard from a number of military leaders and
The fact that Log Cabin's experts may disagree with
21
that conclusion and the wisdom of Congress is legally
22
irrelevant.
23
10:53
10:54
Log Cabin has endeavored to spend the last two weeks
24
presenting the Court with a policy debate, a debate that it
25
lost in 1993 before Congress.
In fact, Congress heard from
10:54
1674
Dr. Korb and received Dr. MacCoun's report during the 1993
debates.
readily acknowledged that they disagreed with the wisdom of
Congress in enacting "Don't Ask, Don't Tell," an opinion we
would submit that is fundamentally at odds with Rostker and
other Supreme Court authority.
And it is telling that each of Log Cabin's experts
And the expert testimony in this case runs afoul of
the Supreme Court's decision in Goldman, which instructs that
it is not appropriate for this Court to hear from experts
10
questioning military policy.
11
admonition is particularly applicable here, where, as we have
12
shown, Congress exhaustively considered the same matters that
13
plaintiff's experts rest their opinions upon:
14
of foreign militaries and paramilitary organizations; privacy;
15
the effect the policy would have on unit cohesion and military
16
effectiveness; the effect on women; and whether open
17
homosexuals have served, such as in the Gulf War.
18
And the Goldman court's
10:54
10:55
The experience
10:55
That Log Cabin's experts may come out differently
19
than Congress on these issues is of no moment.
20
certainly no basis upon which the Court could conclude that the
21
statute is facially unconstitutional.
22
And it's
10:55
And each of Log Cabin's experts offers a similar
23
misplaced opinion concerning "Don't Ask, Don't Tell";
24
specifically, that the statute was not based upon empirical
25
studies.
But the case law is clear that the military need not
10:56
1675
rely upon empirical studies in formulating military policy.
Indeed, the plaintiff's experts have readily admitted that the
bases for the policy, for example, privacy, are not amenable to
empirical study.
admitted that it would be unethical to study issues associated
with unit cohesion on the battlefield.
And the Court will recall that Dr. MacCoun
Yesterday, Dr. Embser-Herbert readily admitted that
military judgment is important in making military policy, and
should not be trumped by the opinions of social scientists.
10
At the end of the day, the issue of open homosexuals
11
in the military is a matter subject to the informed judgment of
12
Congress and the military.
13
to strike a different risk assessment than Congress did in
14
1993, the Court lacks the institutional competence to do so.
15
Indeed, such judicial intrusion violates separation of powers
16
principles.
17
judgment rests within the informed judgment of Congress.
18
10:56
10:57
And while Log Cabin is asking you
10:57
A wealth of authority makes clear that such
The six servicemembers that Log Cabin presented also
19
do not affect the constitutional analysis in this case.
20
Dr. Belkin candidly acknowledged in his testimony anecdotal
21
evidence can be used to prove any point, and it is particularly
22
suspect when it is cherry-picked to support one side.
23
precisely what Log Cabin has done in this case.
That is
24
THE COURT:
25
When you say "cherry-picked," isn't that the heart of
10:57
Excuse me.
10:58
1676
the adversary system, that each side puts on its best
witnesses?
3
4
MR. FREEBORNE:
equal number of witnesses.
THE COURT:
Your Honor, we could have called an

But the point is, the statute --
But you hardly criticize -- it just
seems -- I'm just not sure I understand your point when you
criticize your opponent for putting on its best case.
8
9
MR. FREEBORNE:
No, Your Honor.
Our central point is
that the statute is not based upon the qualifications of
10
servicemembers.
11
particular subject.
12
Colin Powell spoke eloquently to that
THE COURT:
about how the policy -- you're referring to his most recent
14
remarks?
15
MR. FREEBORNE:
Your Honor, we acknowledge that
16
Colin Powell has said, as Dr. Frank acknowledged, this policy
17
should be reviewed.
18
arena.
10:59
It should be reviewed in the political
19
What I'm referring to, Your Honor, is the testimony
20
that Colin Powell provided in 1993 that Congress relied upon;
21
that, again, he stated very clearly, this policy is not about
22
the qualifications of particular servicemembers.
23
Mr. Woods noted, we did not take on the qualifications of these
24
servicemembers.
10:59
And as
But my point is that the testimony of the
10:58
Are you referring to his recent remarks
13
25
10:58
10:59
1677
servicemembers is utterly irrelevant to the constitutional
challenge before the Court.
determination by Congress that allowing open homosexuals to
serve would undermine unit cohesion and impact military
readiness.
concerns outweighed any individual servicemember's skills or
abilities.
second-guessing.
The policy is based upon a
It concluded that privacy and sexual tension
11:00
And that judgment is not susceptible to judicial
Now, as you heard from Mr. Woods, again Log Cabin has
10
repeatedly referenced the ongoing discussions that currently
11
surround the policy, referring to statements by the President
12
and Admiral Mullen, as well as changes in polls and the
13
experience of foreign militaries since 1993.
14
discussions and subjects only serve to highlight that the
15
policy determination is one for Congress and the executive
16
branch, and not one to be made by the courts.
17
11:00
But those
11:00
The fact that a new Congress and executive branch
18
could reach a different conclusion as to whether open
19
homosexuals present an unacceptable risk to unit cohesion and
20
military readiness based upon newly-developed facts highlights
21
that this issue is one invested in the political branches.
22
11:01
The Court must decide whether the statute violates
23
due process based upon the face of the statute in implementing
24
regulations.
25
Salerno.
Log Cabin cannot carry its burden of proof under
Defendants are entitled to judgment as a matter of
11:01
1678
law as to the due process claim.
Now, that leaves plaintiff's First Amendment claim.
Pursuant to the Court's July 7th decision, the Court
has permitted plaintiff to attempt to make out an overbreadth
claim under the First Amendment.
this presents a pure question of law that is not subject to
judicial fact-finding.
not a status-based policy, the Ninth Circuit has recognized in
Holmes and Philips that the policy does not even implicate
10
11
speech.
Like the due process claim,
Because the statute is a conduct-based
The overbreadth doctrine is not even triggered.
Supreme Court's decision in Broadrick v. Oklahoma.
13
Supreme Court recognized there that the overbreadth doctrine is
14
strong medicine and, thus, quote, claims of facial overbreadth
15
have been entertained in cases involving statutes which, by
16
their terms, seek to regulate only spoken words.
17
Philips recognize the statute does not even implicate speech.
18
The overbreadth doctrine, again, has no application.
19
the extent there's any question on that subject, the Ninth
20
Circuit's decision in Roulette v. City of Seattle makes clear
21
that -- and, again, I'm quoting -- facial freedom-of-speech
22
attacks, closed quote, have no application to laws like "Don't
23
Ask, Don't Tell" that prohibit only conduct.
25
11:02
In its July 7th decision, the Court referenced the
12
24
11:01
The
11:02
Holmes and
And to
11:02
And the Christian Legal Society case that Mr. Woods

referenced neither overturns Broadrick or disturbs the holdings
11:03
1679
1
2
in Holmes and Philips.

But, Your Honor, even if the overbreadth doctrine did
apply, the doctrine is only applicable where a limiting
instruction is not possible.
Supreme Court's Broadrick decision makes clear that, quote, the
overbreadth doctrine of a statute must not only be real, but
substantial as well, judged in relation to the statute's
plainly legitimate sweep.
Stated differently, the
Here, the restrictions upon speech that the Court
10
referenced in its July 7th opinion and that Mr. Woods
11
referenced, for example, the right to participate in political
12
rallies for gay rights, the right to petition the government
13
for redresses, are outside of the reach of the statute in
14
governing regulations.
15
For example, with respect to participation in
16
political rallies, the implementing regulations, which have
17
been admitted into evidence as JX-343, make clear that
18
credible --
19
20
THE COURT:
regulations.
11:04
11:04
MR. FREEBORNE:
22
THE COURT:
That's correct.
But what about the point that the
23
plaintiff has made that, of course, the regulations are subject
24
to change, as we've just seen; they could be changed again?

So under the statute, under Section 654, isn't this
11:03
You're talking about the most recent
21
25
11:03
11:04
1680
conduct -- just assuming, for the sake of argument, your
contention that the statute only affects conduct and not
speech, the conduct of attending a rally or participating in a
lawsuit petitioning the government for redress, how is that not
prohibited under the statute?
MR. FREEBORNE:
11:05
Well, again, Your Honor, under
Broadrick, in applying the overbreadth doctrine, the Court must
look to limiting construction, and the applicable regs provide
that limiting construction.
10
In fact, in Broadrick, they looked to the regulations
11
there in providing such a limited construction.
12
clear, Your Honor, plaintiff is challenging the statute and
13
implementing regulations.
14
this case.
15
THE COURT:
And to be
And the current regulations control
So wouldn't this be a situation where,
16
since the regulations have been changed since this case was
17
first filed, to accept your argument would mean that if the
18
Court declined to invalidate the statute because of the most
19
recently adopted regulations, the regulations were changed back
20
to what they were before May of this year, which would have
21
prohibited attending a rally.
22
conduct could be prohibited again, and this would be a case
23
that would allude judicial review by virtue of a change in the
24
regulations.
25
MR. FREEBORNE:
11:05
11:05
11:06
We'd be in a situation where the
Your Honor, to be clear, the guidance
11:06
1681
provided as to, for example, attending political rallies,
that's in the legislative history; that's in JX-3.
doesn't prevent one from attending a political rally.
4
5
6
7
8
9
10
THE COURT:
The statute
But the previous regulations would have,
wouldn't they?
11:07
MR. FREEBORNE:
No, Your Honor.
That's Mr. Woods'
gloss on the -THE COURT:
Is it Mr. Woods' gloss, or is it not --
wasn't it in that training manual?

MR. FREEBORNE:
Your Honor, that goes to why -- that
11
training manual certainly shouldn't trump the current
12
regulations.
13
training manual.
And we have foundational objections to that
14
THE COURT:
15
MR. FREEBORNE:
And they were overruled by the Court.

Your Honor, again, with respect, the
16
current regulations govern the Court's inquiry as to limiting
17
constructions.
18
19
11:07
And Your Honor would be -- well, I'll leave it there,

Your Honor.
20
THE COURT:
21
MR. FREEBORNE:
All right.
11:07
And with respect to Lieutenant
22
Colonel John Doe you just referenced, Your Honor, he has
23
participated in this lawsuit.
24
testified about Doe.
25
11:07
Numerous witnesses have
Now, if I could turn to Mr. Rocha, Mr. Rocha
11:07
1682
testified that he believed that he could not come forward under
the policy and reveal the hazing and harassment that he was
subjected to in Bahrain, but he readily admitted upon
cross-examination that he was able to come forward with that
information and was not discharged as a result of that
disclosure to investigators.
THE COURT:
When you say he readily came forward, in
fact what happened was -- and I haven't reviewed the
transcript, so this is my memory of his testimony almost two
10
weeks ago -- what happened is that the military sent out an
11
investigator based on the actions of his superior officer in
12
the hazing; and when he was first questioned about it, he
13
declined to answer.
14
Isn't that correct?
15
I wouldn't call that readily coming forward.
16
MR. FREEBORNE:
17
11:08
11:08
He came forward, Your Honor; and, to
be clear, he was not discharged as a result.
18
THE COURT:
He didn't come forward.
He didn't come
19
forward.
20
voluntarily come forward.
21
all of the months of hazing, he didn't feel like he could come
22
forward.
He was called and questioned about it.
Isn't that correct?
24
MR. FREEBORNE:
not because of the policy.
He didn't
In fact, he testified that through
23
25
11:08
11:09
But, Your Honor, our point is, it's

The policy --
11:09
1683
THE COURT:
That's not his testimony.
MR. FREEBORNE:
Well, Your Honor, he came forward and
he was not discharged as a result of coming forward to
investigators.
THE COURT:
So you're calling -- all right.
I really have trouble with the idea that somebody who
doesn't voluntarily come forward but is called in for
questioning, not because of anything that he did, but because
the military, through some other means, becomes aware of the
10
practices of his superior officer and attempts to question him;
11
he declines to answer at first; and then finally does -- I have
12
real trouble with calling that he readily comes forward.
13
Is there something else you're referring to?
14
MR. FREEBORNE:
referring to -- and I said it inartfully -- is that Mr. Rocha
16
was able to come forward and reveal his story about the hazing
17
and harassment that he was subjected to in Bahrain.

THE COURT:
19
MR. FREEBORNE:
11:10
After enduring it for months.

Your Honor, my point is that he was
20
able to do that and was not subject to discharge under the
21
policy, which is the impression that they are attempting to
22
leave.
11:10
That's my only point.
23
THE COURT:
24
MR. FREEBORNE:
25
11:09
Your Honor, to be clear, what I was
15
18
11:09
All right.
And Mr. Nicholson, Mr. Loverde, and
Ms. Kopfstein were also discharged as a result of a statement.
11:10
1684
I'm sorry.
I need to step back, Your Honor.
Mr. Rocha was discharged because of a voluntary
statement that he made.
Ms. Kopfstein were also discharged as a result of a statement.
Their individual discharges, thus, also fall squarely within
the holding of Holmes.
And Mr. Nicholson, Mr. Loverde, and
In the end, therefore, Your Honor, plaintiff's
First Amendment claim is a legal claim, which, like the rest of
this case, should be resolved in defendant's favor as a matter
10
11
11:11
of law.
11:11
Your Honor, in closing, if I could just briefly
12
address the nationwide injunction.
13
Circuit, Your Honor; and this statute has been upheld in every
14
other circuit in the land.
15
has the authority to issue a nationwide injunction.
16
think that issue is a matter that's not ripe for today.
17
believe that plaintiff's claims fail as a matter of law.
We do not believe that the Court
18
Thank you.
19
THE COURT:
20
Rebuttal, Mr. Woods.
21
Cook controls in the First
But I
11:11
We
Thank you.
11:12
PLAINTIFF'S FINAL CLOSINGS
22
MR. WOODS:
Thank you, Your Honor.
23
Let me begin by repeating something I believe I have
24
said on prior occasions in this case when the government starts
25
to cite cases.
11:12
1685
Again, counsel for the government cited the Beller
case.
The Court of Appeal in Witt held that, quote, our
holding in Beller is no longer good law.
He cited the Holmes case more than once.
And, again,
this Court has already ruled that Lawrence, quote, removed the
foundation on which Holmes rested and, quote, dissolved, closed
quote, the foundation on which Holmes rested.
He cited the Philips case, Your Honor.
But the Court
has already explained that Philips is an equal protection
10
case -- that was in your June 9, 2009 order, at Note 5 on
11
Page 17 -- and that Lawrence does not support the government's
12
arguments about Philips.
13
at Page 2.
14
The government cited the Cook v. Gates case from the

Second Circuit.
16
within it that it disagrees with Witt.
17
the law of this circuit that controls.
And, again, that case has said many times
11:13
And Witt, of course, is
Counsel argued about the bylaws of the Log Cabin
19
Republicans to try to suggest that under the bylaws,
20
Mr. Nicholson did not qualify to be a member because he wasn't
21
a registered Republican, did not publicly self-identify as a
22
member of the Republican party, and so forth.
23
argument, counsel is referring to Section 2.01 of the bylaws,
24
Exhibit 109.
25
11:13
That was in your July 24, 2009 order,
15
18
11:13
In making that
Counsel is also ignoring Section 2.02 of the bylaws.
11:14
11:14
1686
2.01 establishes the usual criteria for membership.
Section 2.02 is headed "Honorary and Special Members," and says
as follows:
criteria for granting an honorary membership to Log Cabin
Republicans for individuals who have exhibited a unique or
noteworthy contribution to the mission of the corporation, or a
special membership to Log Cabin Republicans for individuals or
entities that have provided assistance to the corporation."
"The board of directors may establish other
With regards to his point about continuous standing,
10
Your Honor, I would just ask the Court to look at one case,
11
which is NAACP v. City of Parma, 263 F.3d 513, in the Sixth
12
Circuit in 2001, which addresses that point to the extent you
13
have not already addressed it in your prior rulings about
14
summary judgment.
15
In regards to the new regulations that Counsel
16
referred to, Your Honor, the Court is absolutely right, the new
17
regulations change nothing in this case, because they could be
18
changed tomorrow.
19
in explaining better what constitutes credible evidence to
20
support an investigation, but I presume that the government
21
felt the need to do that because that had not been the case
22
before.
23
11:14
11:15
11:15
The new regulations are a modest improvement
11:16
For 17 years, "Don't Ask, Don't Tell" investigations
24
were being conducted without credible evidence.
25
importantly, they can be changed again at any time.
But, more
These
11:16
1687
regulations were implemented recently when the political winds
blew one way and as our case approached trial.
winds could blow another way tomorrow or on any other date into
the future.
we are contesting the constitutionality of the statute on which
the regulations are based.
focus of our case.
8
9
10
The political
But, most importantly, Your Honor, on this point,
That was and always has been the
Counsel also suggested that our former

servicemembers' testimony was anecdotal evidence that shouldn't
be considered.
11
11:16
First of all, Your Honor, the government is trying to
12
have it both ways, I believe, with regard to these witnesses.
13
In its motion in limine to exclude these witnesses, the
14
government claimed that their testimony would be cumulative and
15
that only one witness would be enough.
16
making the opposite argument; that the testimony of these six
17
former servicemembers does not stand for the experiences of all
18
members of the armed forces or the effect of "Don't Ask, Don't
19
Tell."
20
witnesses than the six that we did produce.
21
11:16
Now they seem to be
11:17
That implicitly suggests we should have produced more

11:17
Second, Your Honor, the government had every
22
opportunity to present any witness who had any positive
23
experiences under "Don't Ask, Don't Tell" or who might say that
24
from his or her own experience, "Don't Ask, Don't Tell"
25
furthers a legitimate government purpose or was necessary to do
11:17
1688
so.
The government simply did not do that.
Our group of six former servicemembers provided a
representative group of people from different branches,
different genders, different levels of experience, both officer
and enlisted.
they all provided evidence that "Don't Ask, Don't Tell" has had
serious negative effects, not only on them individually, but on
the units in which they worked, and, therefore, on the military
as a whole.
10
And while the details of their stories changed,
Counsel again referred, as he has throughout the
11
case, to the congressional history.
12
Court of something the Court, I'm sure, is already very
13
familiar with, which is the holding in Witt about deference to
14
Congress and the military.
15
not mean abdication.
16
Congress, of course, is subject to the requirements of the due
17
process clause when legislating in the area of military
18
affairs.
19
As Witt held, quote, deference does

11:18
And if counsel's argument were
20
correct, a court would never have any ability to contest the
21
constitutionality of any statute in the military arena.
22
is certainly not the case from all of the cases that we have
23
cited throughout.
24
25
11:18
And I want to remind the
Witt also said, Your Honor, quote,
That's the law.
11:18
11:19
That
In this unique or unusual case, Your Honor, the

military leaders happen today to be on our side.
And that's,
11:19
1689
of course, why the government doesn't mention them in its
closing remarks.
One of the things that's important here, Your Honor,
is just to remember that our governmental system is a system of
checks and balances.
this Court to check the wrong that Congress and the military
have done in "Don't Ask, Don't Tell."
And what this case is about is asking
Counsel made a point, if I understood it correctly,
that Colonel Doe has participated in this case because people
10
have testified about him and that, therefore, his First
11
Amendment rights to petition and associate have not been
12
infringed.
13
11:19
11:20
This, Your Honor, I don't believe, bears any
14
analysis.
15
could easily say that Admiral Mullen participated in the case,
16
Secretary Gates participated in the case, or even
17
President Obama participated in the case, because we talked
18
about them.
19
Colonel Doe is entitled to under his First Amendment rights.
20
If that were the case, Your Honor, then the Court

11:20
That is not the kind of participation that
What I think, Your Honor, is important to also
11:20
21
remember is what counsel for the government did not say in his
22
closing.
23
from the government's closing is any mention of Lawrence.
24
Lawrence, Your Honor, is the foundation on which this case
25
rested.
And one of the things that is particularly absent
It was the reason for the filing of this case.
And
11:21
1690
Lawrence, of course, was itself a facial challenge.
itself took into account various information that had come into
existence after the Texas anti-sodomy law had been passed,
demonstrating, besides the O'Bryan case, that the Court is
absolutely right in considering the evidence we presented in
this case on the many negative effects of "Don't Ask, Don't
Tell."
8
9
Lawrence
Finally, Your Honor, counsel did not identify in his

closing argument any set of circumstances in which the
10
Witt standard, the second and third factors, have been met by
11
any evidence presented by the government at this trial; so,
12
therefore, we have met our burden of showing that the statute
13
is facially unconstitutional.
14
15
THE COURT:
16
The clerk, I believe, has notified the parties that
Thank you.
although both sides submitted your proposed findings, I need to
18
get them in a format that are useable.
19
them, please, in a WordPerfect format by e-mailing that to the
20
Court no later than Monday, I'd appreciate that.
So if you'll submit
request for admission into evidence as a trial exhibit the
23
declaration of John Doe.
25
11:22
The last outstanding issue from yesterday was the
22
24
11:21
11:22
17
21
11:21
I thought about that a little further after we

adjourned yesterday, and I have a few further thoughts about it
11:23
1691
that the parties may care to address.
First of all, I'm not -- I went back and reviewed it
again -- I'm not sure why it's being offered or if it's
necessary.
offered for the standing issue, but the testimony of
Mr. Meekins -- the only thing that's addressed in the
declaration on the standing issue has now been testified to at
trial by Mr. Meekins.
not sure that it's necessary.
10
The uncontradicted -- I mean, I take it it's
So if it's offered for that purpose, I'm
The uncontradicted testimony as to his standing is
11
that he became a member of Log Cabin Republicans before the
12
lawsuit was filed by paying the $60 for dues, and he paid that,
13
according to Mr. Meekins, right before or right after Labor Day
14
in 2004, which is before the lawsuit was originally filed in
15
October of 2004.
16
The declaration doesn't address whether he paid dues

after that, so it's not -- this doesn't go to that at all, so
18
it's not necessary to admit the declaration for that purpose.
19
So if it's offered for standing, I just don't think
20
it's necessary for that, so the Court probably doesn't even
21
need to resolve whether it's admissible as a trial exhibit for
22
that purpose.
24
25
11:24
11:24
17
23
11:23
11:25
So I guess my first question is, what's it being

offered for?
MR. WOODS:
We do wish to have into evidence,
11:25
1692
Your Honor, the portion of it that bears on our First Amendment
claims, where he describes the core of his identity and how he
has been deprived of the opportunity to participate in this
lawsuit.
its admission would be to bear on the First Amendment issues.
So I agree with you on standing.
But the purpose of
THE COURT:
I think I'll allow both sides to file a very brief
All right.
submission on the admissibility of the declaration for that
purpose.
I'd prefer five pages, but no longer than ten pages.
10
And you can file that by a week from today.
11
only outstanding issue I need to have briefing on.
12
MR. WOODS:
13
MR. FREEBORNE:
And that's the
Your Honor, with respect to the
proposed findings, would Wednesday of next week be agreeable to
15
submit those to the Court?
16
and Tuesday.
18
THE COURT:
11:26
Very well, Your Honor.
14
17
11:25
We were all going to be out Monday
11:26
And you don't have an assistant that can
attach that document to an e-mail and send it to me?
19
That's fine.
Wednesday is fine.
20
I'd like to get it earlier, if you can ask somebody
21
in your office to do it; but if you can't -- it's not like I'm
22
going to have the decision out by Wednesday, so Wednesday is
23
fine.
24
MR. FREEBORNE:
25
THE COURT:
11:26
That's fine.
11:26
1693
1
2
I mean, don't go into the office to do it.

is fine.
3
4
Wednesday
All right.
The matter will stand submitted while I
get the further briefing.
Thank you very much.
MR. WOODS:
THE COURT:
And all of you have been over the
11:26
exhibits, and you're all in agreement with Ms. Dillard's
records as to the Court's ruling on the exhibits?
10
MR. FREEBORNE:
11
MR. WOODS:
Yes, Your Honor.
12
THE COURT:
All right.
13
We have, Your Honor.
Then you're released from her
custody.
14
Thank you.
15
(Proceedings concluded.)
16
17
18
CERTIFICATE
19
20
21
22
I hereby certify that pursuant to section 753, title 28, United

States Code, the foregoing is a true and correct transcript of
the stenographically recorded proceedings held in the aboveentitled matter and that the transcript page format is in
conformance with the regulations of the Judicial Conference of
the United States.
23
24
25
_/S/ Theresa A. Lanza

CSR, RPR
Federal Official Court Reporter
_________________
Date
11:27
$
$60 [1] - 1691:12
1
109 [1] - 1685:24
10:26 [1] - 1658:1
1219 [1] - 1660:22
1658 [1] - 1657:3
17 [2] - 1685:11,
1686:23
175 [1] - 1664:12
1900 [1] - 1656:7
1978 [1] - 1663:12
1993 [7] - 1672:6,
1672:14, 1673:25,
1674:1, 1675:14,
1676:20, 1677:13
1998 [1] - 1668:9
5
5 [1] - 1685:10
513 [1] - 1686:11
57 [1] - 1664:21
6
6108 [1] - 1656:15
633 [1] - 1656:6
654 [1] - 1679:25
663 [1] - 1664:1
686 [1] - 1664:1
7
7th [3] - 1678:3,
1678:11, 1679:10
2
879 [1] - 1664:12
2 [1] - 1685:13
2.01 [2] - 1685:23,
1686:1
2.02 [2] - 1685:25,
1686:2
20 [2] - 1656:14,
1663:12
20001 [1] - 1656:15
2001 [1] - 1686:12
2004 [4] - 1662:12,
1662:20, 1691:14,
1691:15
2005 [1] - 1662:21
2006 [2] - 1662:10,
1662:16
2009 [3] - 1670:16,
1685:10, 1685:12
2010 [2] - 1658:1,
1663:25
202-353-0543 [1] 1656:16
213-620-7772 [1] 1656:8
22203 [1] - 1656:20
23 [1] - 1658:1
24 [1] - 1685:12
263 [1] - 1686:11
28 [1] - 1662:16
2d [1] - 1664:1
4
4 [1] - 1664:22
400 [1] - 1656:20
9
9 [2] - 1670:16,
1685:10
90071-2007 [1] 1656:7
901 [1] - 1656:20
A
A.M [1] - 1658:1
Aaron [1] - 1656:6
abdication [1] 1688:15
abilities [1] - 1677:7
ability [1] - 1688:20
able [3] - 1682:4,
1683:16, 1683:20
abortion [1] - 1671:1
absent [1] - 1689:22
absolutely [3] 1659:20, 1686:16,
1690:5
accept [3] - 1672:19,
1672:23, 1680:17
accepting [1] 1663:21
according [3] 1661:21, 1662:18,
1691:13
accordingly [3] 1666:12, 1671:16,
1673:18
account [1] - 1690:2

acknowledge [1] 1676:15
acknowledged [4] 1666:10, 1674:3,
1675:20, 1676:16
action [1] - 1661:13
actions [1] - 1682:11
addition [2] - 1663:5,
1672:6
address [4] 1670:11, 1684:12,
1691:1, 1691:16
addressed [3] 1672:4, 1686:13,
1691:6
addresses [1] 1686:12
adjourned [1] 1690:25
adjudication [1] 1669:24
administration [1] 1659:5
Admiral [2] 1677:12, 1689:15
admissibility [1] 1692:8
admissible [1] 1691:21
admission [3] 1668:3, 1690:22,
1692:5
admit [1] - 1691:18
admitted [6] 1660:15, 1675:2,
1675:5, 1675:7,
1679:17, 1682:3
admonition [1] 1674:11
adopted [1] 1680:19
advanced [1] 1659:4
adversary [1] 1676:1
adverse [1] - 1673:9
advocacy [1] 1664:10
affairs [1] - 1688:18
affect [1] - 1675:19
affected [1] 1672:15
affects [1] - 1680:2
affiliated [1] 1666:11
afford [1] - 1665:25
afforded [1] 1665:12
afoul [2] - 1670:5,
Case Name/number
1674:7
ago [2] - 1669:10,
1682:10
agree [5] - 1663:6,
1667:10, 1667:22,
1670:14, 1692:4
agreeable [1] 1692:14
agreed [1] - 1673:6
ahead [1] - 1665:22
allow [1] - 1692:7
allowed [1] - 1672:15
allowing [3] 1669:19, 1673:15,
1677:3
allude [1] - 1680:23
almost [1] - 1682:9
amenable [1] 1675:3
amended [6] 1661:13, 1661:17,
1662:10, 1662:15,
1662:17, 1662:22
Amendment [10] 1666:22, 1668:11,
1668:12, 1678:2,
1678:5, 1684:8,
1689:11, 1689:19,
1692:1, 1692:5
analysis [6] 1668:15, 1669:22,
1670:20, 1670:25,
1675:19, 1689:14
AND [1] - 1656:17
anecdotal [2] 1675:20, 1687:9
Angeles [1] - 1656:7
animus [1] - 1672:4
annual [2] - 1658:24,
1659:11
annually [3] 1658:25, 1659:8,
1659:13
anonymous [1] 1662:7
ANSWER [1] 1665:1
answer [3] - 1665:4,
1682:13, 1683:11
anti [1] - 1690:3
anti-sodomy [1] 1690:3
Appeal [1] - 1685:2
APPEARANCES [1] 1656:1
applicable [3] 1674:11, 1679:3,
1680:8
application [4] 1671:12, 1671:22,
date
1678:18, 1678:22
applied [5] 1668:17, 1669:22,
1669:25, 1670:20,
1671:12
applies [6] 1665:16, 1670:15,
1671:6, 1671:7,
1671:17, 1671:19
apply [3] - 1664:9,
1671:19, 1679:3
applying [2] 1670:16, 1680:7
appreciate [1] 1690:20
approached [1] 1687:2
appropriate [3] 1670:20, 1673:7,
1674:9
April [1] - 1662:16
area [1] - 1688:17
arena [2] - 1676:18,
1688:21
argued [1] - 1685:18
ARGUMENT [1] 1658:5
argument [10] 1663:22, 1664:13,
1668:1, 1672:5,
1680:1, 1680:17,
1685:23, 1687:16,
1688:19, 1690:9
arguments [2] 1672:3, 1685:12
Arguments..............
.............. [1] - 1657:3
arises [1] - 1673:12
Arlington [2] 1656:20, 1668:9
armed [2] - 1673:7,
1687:18
ARMY [1] - 1656:18
arrangements [1] 1673:8
articles [8] 1658:21, 1659:16,
1659:24, 1660:1,
1660:2, 1661:5,
1664:24, 1665:9
as-applied [4] 1668:17, 1669:22,
1669:25, 1670:20
aside [1] - 1672:2
assessment [1] 1675:13
assistance [1] 1686:8
assistant [1] 1692:17
associate [1] 1689:11

associated [1] 1675:5
associational [4] 1661:7, 1661:11,
1664:3, 1665:18
assumed [1] 1666:7
assuming [1] 1680:1
assumption [1] 1666:8
attach [1] - 1692:18
attacks [1] - 1678:22
attempt [1] - 1678:4
attempted [2] 1661:11, 1662:1
attempting [1] 1683:21
attempts [1] 1683:10
attending [4] 1680:3, 1680:21,
1681:1, 1681:3
Attorney [1] 1656:19
authority [4] 1659:15, 1674:6,
1675:16, 1684:15
Avenue [1] - 1656:14
aware [2] - 1671:4,
1683:9
B
Bahrain [2] - 1682:3,
1683:17
balances [1] 1689:5
based [11] - 1668:16,
1672:3, 1674:24,
1676:9, 1677:2,
1677:20, 1677:23,
1678:7, 1678:8,
1682:11, 1687:6
bases [1] - 1675:3
basing [1] - 1659:22
basis [4] - 1659:23,
1661:7, 1662:3,
1674:20
battlefield [1] 1675:6
bear [1] - 1692:5
bears [2] - 1689:13,
1692:1
became [2] - 1662:2,
1691:11
becomes [1] -
1683:9
begin [1] - 1684:23
beginning [1] 1671:11
Behalf [2] - 1656:3,
1656:10
believes [1] 1671:18
Belkin [1] - 1675:20
Beller [4] - 1670:19,
1671:20, 1685:1,
1685:3
beneficiaries [1] 1664:11
best [2] - 1676:1,
1676:7
better [1] - 1686:19
between [2] 1662:21, 1673:12
blanket [1] - 1666:8
blew [1] - 1687:2
blow [1] - 1687:3
board [2] - 1659:3,
1686:3
books [1] - 1663:14
borne [1] - 1671:14
Bradley [2] 1656:13, 1662:11
branch [2] - 1677:16,
1677:17
Branch [1] - 1656:12
branches [2] 1677:21, 1688:3
brief [1] - 1692:7
briefing [1] - 1692:11
briefly [1] - 1684:11
bring [3] - 1658:8,
1658:10, 1668:10
Broadrick [5] 1678:12, 1678:25,
1679:5, 1680:7,
1680:10
burden [10] - 1662:9,
1662:15, 1662:25,
1666:4, 1666:19,
1670:25, 1671:10,
1671:21, 1677:24,
1690:12
business [1] 1659:5
BY [8] - 1656:5,
1656:5, 1656:6,
1656:12, 1656:13,
1656:13, 1656:14,
1656:19
bylaws [19] - 1659:8,
1660:1, 1660:4,
1660:5, 1660:6,
1660:8, 1660:12,
1660:20, 1661:3,
1661:6, 1663:22,
1665:24, 1666:1,
1666:13, 1666:15,
1685:18, 1685:19,
1685:23, 1685:25
C
Cabin [27] - 1658:8,
1658:9, 1658:16,
1658:20, 1661:6,
1661:9, 1661:10,
1662:8, 1662:10,
1662:15, 1664:25,
1666:8, 1666:13,
1666:14, 1666:17,
1666:19, 1671:21,
1673:23, 1675:12,
1675:18, 1675:23,
1677:9, 1677:24,
1685:18, 1686:4,
1686:7, 1691:11
Cabin's [9] 1658:21, 1660:5,
1665:8, 1666:22,
1672:13, 1673:20,
1674:2, 1674:18,
1674:22
California [2] 1656:7, 1658:1
candidates [1] 1660:18
candidly [2] 1660:15, 1675:20
cannot [4] - 1658:16,
1661:7, 1662:15,
1677:24
care [1] - 1691:1
carried [1] - 1671:21
carry [3] - 1662:9,
1662:15, 1677:24
CASE [1] - 1656:4
case [61] - 1658:7,
1662:4, 1662:5,
1663:19, 1663:23,
1663:25, 1664:3,
1664:4, 1664:6,
1665:12, 1665:24,
1666:17, 1666:25,
1667:13, 1667:15,
1668:2, 1668:7,
1669:22, 1670:3,
1670:8, 1670:22,
1670:23, 1670:24,
1671:4, 1671:9,
1672:13, 1674:7,
1674:25, 1675:19,
1675:23, 1676:7,
1678:24, 1680:14,
1680:16, 1680:22,
Case Name/number
1684:9, 1684:24,
1685:2, 1685:4,
1685:8, 1685:10,
1685:14, 1685:15,
1686:10, 1686:17,
1686:21, 1687:2,
1687:7, 1688:11,
1688:22, 1688:24,
1689:5, 1689:9,
1689:14, 1689:15,
1689:16, 1689:17,
1689:24, 1689:25,
1690:4, 1690:6
cases [11] - 1663:23,
1664:7, 1664:8,
1665:11, 1667:16,
1669:12, 1669:23,
1669:25, 1678:15,
1684:25, 1688:22
Casey [2] - 1670:22,
1671:6
central [1] - 1676:8
certainly [3] 1674:20, 1681:11,
1688:22
challenge [15] 1658:9, 1658:10,
1658:17, 1663:2,
1666:24, 1667:1,
1667:23, 1668:11,
1668:17, 1669:20,
1670:5, 1670:17,
1671:18, 1677:2,
1690:1
challenged [3] 1667:5, 1667:25,
1668:5
challenges [1] 1669:23
challenging [1] 1680:12
change [4] 1672:20, 1679:24,
1680:23, 1686:17
changed [7] 1672:18, 1679:24,
1680:16, 1680:19,
1686:18, 1686:25,
1688:5
changes [1] 1677:12
check [1] - 1689:6
checks [1] - 1689:5
Chemical [1] 1664:7
cherry [2] - 1675:22,
1675:25
cherry-picked [2] 1675:22, 1675:25
Chevron [1] - 1664:7
date
Christian [1] 1678:24

Circuit [9] - 1664:6,
1664:11, 1668:7,
1671:5, 1671:24,
1678:8, 1684:13,
1685:15, 1686:12
circuit [2] - 1684:14,
1685:17
Circuit's [2] 1670:18, 1678:20
circumstances [1] 1690:9
cite [1] - 1684:25
cited [9] - 1667:16,
1668:7, 1668:19,
1669:12, 1685:1,
1685:4, 1685:8,
1685:14, 1688:23
citing [1] - 1664:4
Citizens [1] 1663:25
city [2] - 1678:20,
1686:11
City [2] - 1668:8,
1668:9
Civil [1] - 1656:12
claim [6] - 1678:1,
1678:2, 1678:5,
1684:8
claimed [1] 1687:14
claims [4] - 1666:22,
1678:14, 1684:17,
1692:2
clause [1] - 1688:17
clear [14] - 1659:14,
1659:25, 1661:10,
1667:14, 1670:13,
1674:25, 1675:16,
1678:20, 1679:5,
1679:17, 1680:12,
1680:25, 1682:17,
1683:14
clearly [1] - 1676:21
clerk [1] - 1690:16
close [1] - 1668:22
closed [2] - 1678:22,
1685:6
Closing [1] - 1657:3
closing [5] 1684:11, 1689:2,
1689:22, 1689:23,
1690:9
CLOSING [1] 1658:5
CLOSINGS [1] 1684:21
cognizable [1] 1658:10
cohesion [9] 1672:11, 1672:14,

1672:18, 1673:10,
1673:13, 1674:15,
1675:6, 1677:4,
1677:19
Colacurcio [1] 1668:9
Colin [4] - 1672:23,
1676:10, 1676:16,
1676:20
colleague [1] 1669:11
Colonel [4] - 1663:7,
1681:22, 1689:9,
1689:19
coming [2] 1682:15, 1683:3
comparison [1] 1667:6
competence [1] 1675:14
complaint [6] 1661:13, 1661:18,
1662:10, 1662:15,
1662:17, 1662:23
conceivable [1] 1671:22
Concerned [1] 1663:24
concerning [2] 1673:5, 1674:23
concerns [1] 1677:6
conclude [1] 1674:20
concluded [1] 1677:5
concludes [1] 1666:12
conclusion [2] 1673:21, 1677:18
conduct [7] 1672:11, 1678:7,
1678:23, 1680:1,
1680:2, 1680:3,
1680:22
conduct-based [1] 1678:7
conducted [1] 1686:24
confer [2] - 1663:21,
1664:19
confirmed [1] 1658:12
confirms [1] 1658:16
confusion [2] 1671:13, 1671:14
Congress [27] -
1670:8, 1672:6,
1672:13, 1672:17,
1672:20, 1672:21,
1672:25, 1673:4,
1673:11, 1673:14,
1673:16, 1673:21,
1673:25, 1674:4,
1674:12, 1674:19,
1675:12, 1675:13,
1675:17, 1676:20,
1677:3, 1677:15,
1677:17, 1688:14,
1688:16, 1689:6
congress's [1] 1672:23
congressional [2] 1668:22, 1688:11
connection [1] 1673:15
consider [1] 1663:16
considered [4] 1673:4, 1673:14,
1674:12, 1687:10
considering [1] 1690:5
consistent [1] 1671:20
constitutes [1] 1686:19
constitutional [8] 1658:9, 1663:2,
1664:2, 1666:24,
1669:24, 1671:18,
1675:19, 1677:1
constitutionality [4]
- 1667:23, 1670:2,
1687:5, 1688:21
construction [3] 1680:8, 1680:9,
1680:11
constructions [1] 1681:17
contention [1] 1680:2
contest [2] - 1668:2,
1688:20
contesting [1] 1687:5
context [5] 1668:12, 1669:20,
1670:4, 1671:1,
1671:7
contexts [1] 1668:13
continue [1] 1664:17
continued [2] 1664:18, 1672:3
continuous [2] -
1665:15, 1686:9
contrary [1] 1670:17
contribution [7] 1658:25, 1659:8,
1659:9, 1659:10,
1659:12, 1686:6
control [3] - 1660:2,
1671:3, 1680:13
controls [4] 1670:24, 1671:9,
1684:12, 1685:17
convention [2] 1661:22, 1661:23
cook [1] - 1684:12
Cook [3] - 1670:20,
1671:20, 1685:14
core [1] - 1692:2
corporate [1] 1664:1
Corporation [1] 1668:10
corporation [3] 1665:10, 1686:6,
1686:8
correct [10] 1660:20, 1661:15,
1661:24, 1662:13,
1662:24, 1664:25,
1679:21, 1682:14,
1682:23, 1688:20
correctly [2] 1659:6, 1689:8
counsel [9] - 1685:1,
1685:18, 1685:23,
1685:25, 1687:8,
1688:10, 1689:8,
1689:21, 1690:8
Counsel [1] 1686:15
counsel's [1] 1688:19
countenanced [1] 1662:6
course [9] - 1664:4,
1665:9, 1666:8,
1668:6, 1679:23,
1685:16, 1688:16,
1689:1, 1690:1
court [3] - 1669:15,
1670:9, 1688:20
COURT [39] - 1658:3,
1658:22, 1659:2,
1659:19, 1660:16,
1661:14, 1661:17,
1661:21, 1662:18,
1663:3, 1665:3,
1665:22, 1667:4,
1667:11, 1667:15,
1667:22, 1668:18,
Case Name/number
1669:9, 1675:24,
1676:5, 1676:12,
1679:19, 1679:22,
1680:15, 1681:4,
1681:8, 1681:14,
1681:20, 1682:7,
1682:18, 1683:1,
1683:5, 1683:18,
1683:23, 1684:19,
1690:15, 1692:6,
1692:17, 1692:25
Court [63] - 1658:6,
1658:7, 1660:3,
1661:4, 1661:5,
1662:6, 1662:13,
1664:9, 1666:12,
1666:16, 1666:20,
1667:2, 1667:5,
1667:12, 1667:16,
1667:19, 1667:24,
1668:4, 1668:16,
1668:17, 1668:23,
1668:24, 1669:3,
1669:11, 1669:12,
1669:14, 1669:19,
1669:21, 1669:25,
1670:4, 1670:15,
1671:8, 1671:11,
1671:17, 1673:24,
1674:6, 1674:9,
1674:20, 1675:4,
1675:14, 1677:2,
1677:22, 1678:3,
1678:11, 1678:13,
1679:9, 1680:7,
1680:18, 1681:14,
1684:14, 1685:2,
1685:5, 1685:8,
1686:10, 1686:16,
1688:12, 1689:6,
1689:14, 1690:4,
1690:20, 1691:20,
1692:15
Court's [6] 1671:13, 1674:8,
1678:3, 1678:12,
1679:5, 1681:16
court's [1] - 1674:10
courts [1] - 1677:16
credible [3] 1679:18, 1686:19,
1686:24
criteria [2] - 1686:1,
1686:4
criticize [2] - 1676:5,
1676:7
Crittenden [1] 1672:9
cross [1] - 1682:4
cross-examination
date
- 1682:4
cumulative [1] 1687:14
current [3] 1680:13, 1681:11,
1681:16
cute [1] - 1661:25
[1]
D
D.C [1] - 1660:1
Dan [1] - 1656:5
date [7] - 1661:17,
1661:19, 1661:20,
1661:22, 1662:14,
1687:3
DC [1] - 1656:15
deal [1] - 1663:23
dealt [1] - 1664:11
debate [4] - 1670:8,
1673:24
debates [1] - 1674:2
decide [1] - 1677:22
decision [9] 1670:16, 1670:18,
1674:8, 1678:3,
1678:11, 1678:12,
1678:20, 1679:5,
1692:22
declaration [5] 1690:23, 1691:7,
1691:16, 1691:18,
1692:8
declined [2] 1680:18, 1682:13
declines [1] 1683:11
defendant's [1] 1684:9
Defendants [1] 1656:10
defendants [2] 1666:21, 1677:25
defense [1] - 1664:4
DEFENSE'S [1] 1658:5
deference [2] 1688:13, 1688:14
degree [1] - 1659:5
delinquent [1] 1663:13
demonstrated [1] 1666:9
demonstrating [3] 1663:1, 1666:20,
1690:4
DEPARTMENT [1] 1656:11
deprived [1] - 1692:3
describes [1] 1692:2

details [1] - 1688:5
determination [4] 1669:4, 1671:17,
1677:3, 1677:15
determine [2] 1667:23, 1669:17
determined [3] 1672:6, 1673:1,
1673:9
determining [4] 1662:14, 1667:9,
1667:11, 1667:19
developed [1] 1677:20
different [5] 1675:13, 1677:18,
1688:3, 1688:4
differently [2] 1674:18, 1679:4
direct [1] - 1667:15
directed [5] - 1667:5,
1667:24, 1668:4,
1668:24, 1669:15
directors [1] 1686:3
disagree [2] 1669:6, 1673:20
disagreed [1] 1674:3
disagrees [1] 1685:16
discharge [1] 1683:20
discharged [6] 1682:5, 1682:17,
1683:3, 1683:25,
1684:2, 1684:4
discharges [1] 1684:5
disclosure [1] 1682:6
discrete [1] 1664:10
discussions [3] 1669:18, 1677:10,
1677:14
disfavored [1] 1669:24
disjunctive [1] 1660:20
dissolved [1] 1685:6
disturbs [1] 1678:25
Division [2] 1656:12, 1656:18
doctrine [7] 1678:10, 1678:13,
1678:18, 1679:2,
1679:3, 1679:6,
1680:7
document [1] 1692:18
documents [1] 1672:9
Doe [17] - 1662:7,
1662:9, 1662:11,
1662:16, 1663:7,
1664:12, 1665:12,
1665:25, 1666:2,
1666:7, 1666:14,
1681:22, 1681:24,
1689:9, 1689:19,
1690:23
done [3] - 1662:13,
1675:23, 1689:7
doubt [1] - 1669:8
dozens [1] - 1672:7
Dr [10] - 1672:13,
1672:19, 1672:22,
1674:1, 1675:4,
1675:7, 1675:20,
1676:16
Drs [1] - 1673:6
due [5] - 1666:22,
1677:23, 1678:1,
1678:5, 1688:16
dues [16] - 1658:20,
1658:24, 1659:11,
1659:22, 1659:25,
1662:12, 1662:19,
1663:7, 1663:9,
1663:13, 1663:22,
1664:15, 1664:17,
1664:23, 1691:12,
1691:16
duration [1] 1665:18
during [2] - 1665:17,
1674:1
E
e-mail [2] - 1663:15,
1692:18
e-mailing [1] 1690:19
e-mails [1] - 1664:18
Earle [1] - 1656:5
Earth [1] - 1664:6
easily [1] - 1689:15
effect [8] - 1667:5,
1667:25, 1668:4,
1668:25, 1673:9,
1674:15, 1674:16,
1687:18
effectiveness [3] -
1672:1, 1672:12,
1674:16
effects [2] - 1688:7,
1690:6
elaborated [1] 1665:4
elapsed [1] 1662:22
Eleventh [1] 1664:11
eloquently [1] 1676:10
Embser [1] - 1675:7
Embser-Herbert [1] 1675:7
empirical [3] 1674:24, 1675:1,
1675:4
enacting [1] - 1674:4
enactment [1] 1667:7
end [2] - 1675:10,
1684:7
endeavored [1] 1673:23
enduring [1] 1683:18
engaging [1] 1669:21
enlisted [2] 1673:17, 1688:5
Ensley [1] - 1661:10
entertained [1] 1678:15
entities [1] - 1686:8
entitled [3] 1666:21, 1677:25,
1689:19
equal [2] - 1676:4,
1685:9
essentially [1] 1670:7
establish [3] 1666:13, 1666:14,
1686:3
establishes [1] 1686:1
establishing [1] 1666:4
event [3] - 1659:7,
1659:11, 1671:21
evidence [18] 1658:23, 1659:19,
1661:8, 1662:8,
1664:15, 1664:16,
1668:12, 1668:25,
1675:21, 1679:17,
1686:19, 1686:24,
1687:9, 1688:6,
1690:5, 1690:11,
Case Name/number
1690:22, 1691:25
exacerbate [1] 1660:6
exact [1] - 1658:24
exactly [1] - 1661:21
examination [1] 1682:4
examine [2] 1668:24, 1669:15
example [7] 1668:25, 1670:6,
1673:5, 1675:3,
1679:11, 1679:15,
1681:1
except [1] - 1663:7
exclude [1] 1687:13
excuse [2] - 1658:22,
1675:24
executive [2] 1677:15, 1677:17
exhaustively [1] 1674:12
exhibit [3] - 1668:3,
1690:22, 1691:21
Exhibit [1] - 1685:24
exhibited [1] 1686:5
exist [2] - 1665:2,
1673:18
existence [1] 1690:3
expansive [1] 1670:1
experience [4] 1674:13, 1677:13,
1687:24, 1688:4
experiences [2] 1687:17, 1687:23
expert [2] - 1672:7,
1674:7
experts [8] 1672:13, 1673:20,
1674:2, 1674:9,
1674:13, 1674:18,
1674:22, 1675:2
explained [2] 1666:23, 1685:9
explaining [1] 1686:19
explicit [1] - 1670:17
extensive [1] 1672:25
extent [7] - 1659:25,
1665:8, 1665:25,
1666:12, 1671:18,
1678:19, 1686:12
eye [1] - 1671:8
date
F
F.3d [2] - 1664:12,
1686:11
face [5] - 1667:2,
1668:16, 1669:3,
1669:7, 1677:23
facial [12] - 1666:24,
1667:1, 1667:23,
1668:15, 1669:20,
1669:23, 1670:5,
1670:16, 1671:18,
1678:14, 1678:21,
1690:1
facially [2] - 1674:21,
1690:13
fact [9] - 1666:6,
1668:18, 1673:20,
1673:25, 1677:17,
1678:7, 1680:10,
1682:8, 1682:20
fact-finding [1] 1678:7
factors [1] - 1690:10
facts [4] - 1667:6,
1669:20, 1670:4,
1677:20
factual [2] - 1664:21,
1665:2
fail [2] - 1666:23,
1684:17
failed [3] - 1658:9,
1662:9, 1666:14
fails [1] - 1664:23
fall [1] - 1684:5
familiar [1] - 1688:13
favor [1] - 1684:9
favorable [1] 1661:9
Federal [1] - 1656:12
federal [1] - 1667:1
felt [1] - 1686:21
few [2] - 1669:10,
1690:25
Fifth [2] - 1656:6,
1664:6
file [2] - 1692:7,
1692:10
filed [8] - 1661:12,
1661:18, 1662:10,
1662:17, 1662:23,
1680:17, 1691:12,
1691:14
filing [1] - 1689:25
FINAL [1] - 1684:21
finally [2] - 1683:11,
1690:8
financial [4] 1658:24, 1659:8,
1659:11, 1659:12
findings [2] 1690:17, 1692:14
fine [4] - 1692:19,
1692:23, 1692:25
First [11] - 1666:22,
1668:11, 1668:12,
1678:2, 1678:5,
1684:8, 1684:12,
1689:10, 1689:19,
1692:1, 1692:5
first [14] - 1658:8,
1659:14, 1661:17,
1663:5, 1663:7,
1663:10, 1664:15,
1671:15, 1680:17,
1682:12, 1683:11,
1687:11, 1691:2,
1691:23
five [2] - 1663:10,
1692:9
flaws [1] - 1660:6
flips [1] - 1670:6
focus [1] - 1687:7
focused [1] - 1670:1
Foley [1] - 1668:8
follows [1] - 1686:3
forces [2] - 1673:7,
1687:18
foreign [2] - 1674:14,
1677:13
formal [1] - 1664:2
formalities [1] 1664:1
format [2] - 1690:18,
1690:19
former [3] - 1687:8,
1687:17, 1688:2
formulating [1] 1675:1
forth [5] - 1664:19,
1670:19, 1670:21,
1671:6, 1685:22
forward [14] 1682:1, 1682:4,
1682:7, 1682:15,
1682:16, 1682:18,
1682:19, 1682:20,
1682:22, 1683:2,
1683:3, 1683:7,
1683:12, 1683:16
foundation [3] 1685:6, 1685:7,
1689:24
foundational [1] 1681:12
founded [1] 1663:11
Frank [1] - 1676:16
FREEBORNE [36] -
1658:6, 1659:1,
1659:14, 1659:20,
1660:22, 1661:16,
1661:19, 1661:24,
1662:24, 1664:20,
1665:6, 1665:23,
1667:9, 1667:13,
1667:18, 1668:14,
1669:5, 1669:16,
1676:3, 1676:8,
1676:15, 1679:21,
1680:6, 1680:25,
1681:6, 1681:10,
1681:15, 1681:21,
1682:16, 1682:24,
1683:2, 1683:14,
1683:19, 1683:24,
1692:13, 1692:24
Freeborne [2] 1656:12, 1658:4
freedom [1] 1678:21
freedom-of-speech
[1] - 1678:21
Friday [1] - 1658:1
Friends [1] - 1664:6
fundamentally [1] 1674:5
furthers [1] 1687:25
future [1] - 1687:4
G
gap [1] - 1662:21
Gardner [1] 1656:13
gates [1] - 1685:14
Gates [1] - 1689:16
gay [1] - 1679:12
genders [1] - 1688:4
generous [1] 1664:9
given [1] - 1666:16
gloss [2] - 1681:7,
1681:8
Goldman [2] 1674:8, 1674:10
govern [1] - 1681:16
governing [1] 1679:14
government [16] 1667:16, 1668:19,
1679:12, 1680:4,
1684:24, 1685:1,
1685:14, 1686:20,
1687:11, 1687:14,
1687:21, 1687:25,
1688:1, 1689:1,
1689:21, 1690:11
government's [3] 1668:1, 1685:11,
1689:23
governmental [2] 1671:25, 1689:4
Grange [1] - 1669:23
Grant [1] - 1656:19
granting [1] - 1686:4
great [1] - 1660:5
group [2] - 1688:2,
1688:3
groups [1] - 1664:9
guess [3] - 1663:18,
1664:13, 1691:23
guessing [1] 1677:8
guidance [1] 1680:25
Gulf [1] - 1674:17
H
Hamilton [1] 1664:21
hand [1] - 1672:5
harassment [2] 1682:2, 1683:17
hardly [1] - 1676:5
hazardous [2] 1668:21
hazing [4] - 1682:2,
1682:12, 1682:21,
1683:16
head [1] - 1670:7
headed [1] - 1686:2
hear [1] - 1674:9
heard [6] - 1658:15,
1670:7, 1673:11,
1673:16, 1673:25,
1677:9
hearing [3] - 1670:4,
1672:7, 1672:21
hearings [1] 1672:25
heart [1] - 1675:25
heightened [2] 1670:19, 1671:19
Heights [1] - 1668:9
held [2] - 1685:2,
1688:14
Henderson [2] 1672:22, 1673:6
Herbert [1] - 1675:7
heterosexuals [1] 1673:12
highlight [1] 1677:14
highlights [1] -
Case Name/number
1677:20
highly [1] - 1673:19
historic [1] - 1662:5
history [7] - 1667:3,
1669:8, 1669:9,
1669:13, 1672:25,
1681:2, 1688:11
holding [3] - 1684:6,
1685:3, 1688:13
holdings [1] 1678:25
holds [1] - 1664:1
Holmes [7] - 1678:9,
1678:16, 1679:1,
1684:6, 1685:4,
1685:6, 1685:7
homosexual [1] 1672:11
homosexuals [7] 1672:15, 1673:12,
1673:15, 1674:17,
1675:10, 1677:3,
1677:19
Honor [66] - 1658:6,
1659:1, 1659:14,
1659:21, 1660:14,
1660:22, 1661:8,
1661:20, 1661:24,
1662:24, 1664:20,
1665:7, 1665:11,
1665:14, 1665:21,
1667:10, 1667:13,
1668:14, 1669:5,
1670:10, 1670:24,
1671:4, 1672:2,
1676:3, 1676:8,
1676:15, 1676:19,
1679:2, 1680:6,
1680:12, 1680:25,
1681:6, 1681:10,
1681:15, 1681:18,
1681:19, 1681:22,
1682:16, 1682:24,
1683:2, 1683:14,
1683:19, 1684:1,
1684:7, 1684:11,
1684:13, 1684:22,
1685:8, 1686:10,
1686:16, 1687:4,
1687:11, 1687:21,
1688:15, 1688:24,
1689:3, 1689:13,
1689:14, 1689:20,
1689:24, 1690:8,
1690:14, 1692:1,
1692:12, 1692:13,
1692:24
honorary [2] 1659:23, 1686:4
Honorary [1] -
date
1686:2
Housing [1] 1668:10
Hunt [2] - 1664:4,
1664:8
I
idea [1] - 1683:6
identified [2] 1660:10, 1660:24
identify [4] 1658:16, 1660:19,
1685:21, 1690:8
identifying [1] 1660:17
identity [1] - 1692:2
ignoring [1] 1685:25
impact [3] - 1672:18,
1673:13, 1677:4
implemented [1] 1687:1
implementing [5] 1658:11, 1667:2,
1677:23, 1679:16,
1680:13
implicate [2] 1678:9, 1678:17
implicitly [1] 1687:19
important [3] 1675:8, 1689:3,
1689:20
importantly [2] 1686:25, 1687:4
impression [1] 1683:21
improvement [1] 1686:18
in-kind [1] - 1659:10
inappropriate [1] 1666:25
inartfully [1] 1683:15
include [1] - 1664:18
including [3] 1667:17, 1667:24,
1669:8
inconsistent [2] 1660:1, 1665:9
incorporation [4] 1658:21, 1660:2,
1664:24, 1665:9
incorrect [1] 1666:9
indeed [4] - 1661:8,
1672:12, 1675:2,
1675:15
individual [2] 1677:6, 1684:5

individually [1] 1688:7
individuals [2] 1686:5, 1686:7
informal [3] 1663:19, 1663:20,
1663:24
informally [1] 1663:16
information [2] 1682:5, 1690:2
informed [2] 1675:11, 1675:17
infringed [3] 1671:1, 1671:2,
1689:12
initial [1] - 1670:14
injunction [2] 1684:12, 1684:15
inquiring [1] 1668:21
inquiry [2] - 1670:1,
1681:16
insignificant [1] 1672:20
instance [1] 1671:15
institutional [1] 1675:14
instruction [1] 1679:4
instructs [1] - 1674:8
interrupting [1] 1658:22
intrusion [1] 1675:15
invalidate [1] 1680:18
invested [1] 1677:21
investigation [1] 1686:20
investigations [1] 1686:23
investigator [1] 1682:11
investigators [2] 1682:6, 1683:4
involved [1] - 1660:9
involving [1] 1678:15
irrelevant [2] 1673:22, 1677:1
issue [17] - 1660:4,
1663:4, 1664:5,
1664:12, 1666:25,
1672:8, 1672:24,
1673:5, 1673:14,
1675:10, 1677:21,
1684:15, 1684:16,
1690:21, 1691:5,
1691:7, 1692:11
issues [3] - 1674:19,
1675:5, 1692:5
itself [3] - 1670:15,
1690:1, 1690:2
J
John [4] - 1662:7,
1665:25, 1681:22,
1690:23
Joshua [1] - 1656:13
judged [1] - 1679:7
judgment [10] 1666:21, 1672:24,
1673:3, 1675:8,
1675:11, 1675:17,
1677:7, 1677:25,
1686:14
judicial [4] 1675:15, 1677:7,
1678:7, 1680:23
July [5] - 1658:1,
1678:3, 1678:11,
1679:10, 1685:12
June [2] - 1670:16,
1685:10
jurisdiction [1] 1666:21
JUSTICE [1] 1656:11
Justice [1] - 1670:25
JX-109 [1] - 1660:8
JX-3 [1] - 1681:2
JX-343 [1] - 1679:17
K
Kahn [1] - 1656:6
keep [1] - 1671:8
Kent [1] - 1668:9
kind [2] - 1659:10,
1689:18
Kopfstein [2] 1683:25, 1684:4
Korb [3] - 1672:13,
1673:6, 1674:1
Korb's [1] - 1672:19
L
Labor [2] - 1662:20,
1691:13
lacks [3] - 1658:8,
1666:17, 1675:14
land [1] - 1684:14

language [2] 1668:20, 1668:23
Las [1] - 1668:8
last [5] - 1669:10,
1669:13, 1669:14,
1673:23, 1690:21
law [21] - 1660:2,
1663:19, 1663:23,
1666:17, 1666:23,
1667:1, 1667:6,
1667:7, 1667:13,
1667:15, 1668:6,
1669:22, 1674:25,
1678:1, 1678:6,
1684:10, 1684:17,
1685:3, 1685:17,
1688:19, 1690:3
Lawrence [6] 1685:5, 1685:11,
1689:23, 1689:24,
1690:1
laws [1] - 1678:22
lawsuit [6] - 1665:18,
1680:4, 1681:23,
1691:12, 1691:14,
1692:4
lawyer [1] - 1659:4
lay [1] - 1672:7
LCR [1] - 1660:9
leaders [3] 1672:22, 1673:16,
1688:25
learned [1] - 1669:11
least [2] - 1669:13,
1673:2
leave [2] - 1681:18,
1683:22
leaves [1] - 1678:2
Legal [1] - 1678:24
legal [2] - 1668:15,
1684:8
legally [2] - 1658:10,
1673:21
legislating [1] 1688:17
legislative [6] 1667:3, 1669:8,
1669:9, 1669:13,
1672:24, 1681:2
legitimate [3] 1671:25, 1679:8,
1687:25
levels [1] - 1688:4
Lieutenant [1] 1681:21
light [2] - 1661:9,
1663:18
likewise [2] - 1673:1,
1673:13
Case Name/number
limine [1] - 1687:13

limited [2] - 1670:1,
1680:11
limiting [4] - 1679:3,
1680:8, 1680:9,
1681:16
Line [1] - 1664:22
line [1] - 1664:8
list [3] - 1663:15,
1664:7
lists [1] - 1669:14
Litigation [2] 1656:18, 1656:19
living [1] - 1673:8
Log [36] - 1658:8,
1658:9, 1658:16,
1658:20, 1658:21,
1660:5, 1661:6,
1661:9, 1661:10,
1662:8, 1662:10,
1662:15, 1664:25,
1665:8, 1666:8,
1666:13, 1666:14,
1666:17, 1666:19,
1666:22, 1671:21,
1672:13, 1673:20,
1673:23, 1674:2,
1674:18, 1674:22,
1675:12, 1675:18,
1675:23, 1677:9,
1677:24, 1685:18,
1686:4, 1686:7,
1691:11
look [12] - 1667:2,
1667:5, 1667:19,
1667:20, 1667:22,
1667:24, 1668:4,
1669:3, 1669:16,
1669:20, 1680:8,
1686:10
looked [2] - 1665:11,
1680:10
looking [2] - 1662:4,
1668:23
looks [2] - 1661:5,
1667:12
Los [1] - 1656:7
lost [1] - 1673:25
Loverde [2] 1683:24, 1684:3
M
MacCoun [1] 1675:4
MacCoun's [1] 1674:1
mail [2] - 1663:15,
1692:18
date
mailing [2] 1663:15, 1690:19

mailings [1] 1664:18
mails [1] - 1664:18
Major [1] - 1656:19
manner [1] - 1671:19
manual [3] - 1681:9,
1681:11, 1681:13
manufacture [2] 1661:11, 1662:1
manufactured [2] 1662:4, 1662:5
Marlowe [2] 1672:22, 1673:6
Massachusetts [1] 1656:14
master's [1] - 1659:5
matter [11] - 1663:1,
1666:17, 1666:20,
1666:23, 1668:21,
1670:14, 1675:11,
1677:25, 1684:9,
1684:16, 1684:17
matters [1] - 1674:12
mean [5] - 1660:20,
1668:11, 1680:17,
1688:15, 1691:4
means [2] - 1673:2,
1683:9
medicine [1] 1678:14
Meekins [10] 1659:3, 1659:15,
1662:11, 1662:18,
1666:2, 1666:3,
1666:6, 1691:6,
1691:8, 1691:13
meet [1] - 1671:10
member [19] 1658:16, 1660:9,
1660:24, 1661:6,
1661:12, 1662:1,
1662:2, 1662:9,
1662:16, 1663:12,
1664:17, 1664:23,
1664:24, 1665:17,
1666:7, 1666:15,
1685:20, 1685:22,
1691:11
Members [1] 1686:2
members [4] 1660:21, 1663:17,
1663:19, 1687:18
membership [11] 1658:20, 1659:23,
1660:13, 1661:2,
1663:20, 1663:24,
1664:2, 1666:13,
1686:1, 1686:4,
1686:7
memory [1] - 1682:9
men [1] - 1673:7
mention [2] - 1689:1,
1689:23
mentioned [3] 1669:10, 1670:22,
1671:11
merits [1] - 1666:22
met [2] - 1690:10,
1690:12
Metropolitan [1] 1668:10
might [1] - 1687:23
militaries [2] 1674:14, 1677:13
military [25] - 1672:1,
1672:12, 1672:16,
1672:22, 1673:16,
1673:18, 1674:10,
1674:15, 1674:25,
1675:1, 1675:8,
1675:11, 1675:12,
1677:4, 1677:20,
1682:10, 1683:9,
1688:8, 1688:14,
1688:17, 1688:21,
1688:25, 1689:6
Miller [1] - 1656:5
misapplication [1] 1671:14
misplaced [1] 1674:23
mission [1] - 1686:6
modest [1] - 1686:18
moment [1] 1674:19
moments [1] 1669:10
Monday [2] 1690:20, 1692:15
monetary [1] 1659:9
month [1] - 1662:21
months [3] 1662:22, 1682:21,
1683:18
most [6] - 1661:9,
1668:3, 1676:13,
1679:19, 1680:18,
1687:4
motion [1] - 1687:13
motivation [3] 1667:20, 1667:22,
1669:18
motives [1] 1668:22
move [2] - 1660:4,
1665:20
moving [1] - 1659:21

MR [39] - 1658:6,
1659:1, 1659:14,
1659:20, 1660:22,
1661:16, 1661:19,
1661:24, 1662:24,
1664:20, 1665:6,
1665:23, 1667:9,
1667:13, 1667:18,
1668:14, 1669:5,
1669:16, 1676:3,
1676:8, 1676:15,
1679:21, 1680:6,
1680:25, 1681:6,
1681:10, 1681:15,
1681:21, 1682:16,
1682:24, 1683:2,
1683:14, 1683:19,
1683:24, 1684:22,
1691:25, 1692:12,
1692:13, 1692:24
Mullen [2] - 1677:12,
1689:15
Murphy [2] - 1663:25
must [6] - 1660:9,
1665:15, 1668:16,
1677:22, 1679:6,
1680:7
Myers [1] - 1671:4
N
NAACP [1] - 1686:11
national [2] - 1659:3,
1661:23
nationwide [2] 1684:12, 1684:15
nearly [1] - 1668:3
necessarily [1] 1669:13
necessary [6] 1673:4, 1687:25,
1691:4, 1691:9,
1691:18, 1691:20
need [6] - 1674:25,
1684:1, 1686:21,
1690:17, 1691:21,
1692:11
negative [3] 1673:13, 1688:7,
1690:6
negatively [1] 1672:15
never [2] - 1658:19,
1688:20
new [4] - 1677:17,
1686:15, 1686:16,
1686:18
newly [1] - 1677:20
newly-developed [1]
- 1677:20
next [2] - 1665:20,
1692:14
Nicholson [11] 1658:19, 1660:14,
1661:6, 1661:10,
1661:12, 1661:14,
1662:1, 1666:10,
1683:24, 1684:3,
1685:20
Nicholson's [2] 1659:22, 1660:13
Ninth [6] - 1668:7,
1670:17, 1671:5,
1671:24, 1678:8,
1678:19
none [1] - 1660:15
notable [1] - 1672:12
Note [1] - 1685:10
noted [2] - 1670:15,
1676:23
noteworthy [1] 1686:6
nothing [3] 1663:14, 1663:16,
1686:17
notified [1] - 1690:16
number [5] 1663:23, 1669:18,
1672:9, 1673:16,
1676:4
numerous [1] 1681:23
NW [1] - 1656:14
O
O'Bryan [9] 1667:17, 1667:18,
1668:6, 1668:18,
1668:19, 1669:2,
1669:19, 1690:4
O'Connor [1] 1670:25
Obama [1] - 1689:17
objections [1] 1681:12
obvious [1] 1658:15
occasions [1] 1684:24
occur [1] - 1670:8
October [1] 1691:15
odds [1] - 1674:5
OF [1] - 1656:11
offered [5] - 1691:3,
1691:5, 1691:8,
Case Name/number
1691:19, 1691:24
offers [1] - 1674:22
office [1] - 1692:21
officer [3] - 1682:11,
1683:10, 1688:4
Oil [1] - 1663:25
Oklahoma [1] 1678:12
once [1] - 1685:4
one [21] - 1659:16,
1660:9, 1662:20,
1662:21, 1663:7,
1665:4, 1666:3,
1668:20, 1671:2,
1672:12, 1672:17,
1675:22, 1677:15,
1677:16, 1677:21,
1681:3, 1686:10,
1687:2, 1687:15,
1689:3, 1689:22
ongoing [1] 1677:10
oOo [1] - 1658:2
open [5] - 1673:15,
1674:16, 1675:10,
1677:3, 1677:18
openly [1] - 1672:16
operative [2] 1661:20, 1662:14
opinion [3] - 1674:4,
1674:23, 1679:10
opinions [2] 1674:13, 1675:9
opponent [2] 1669:11, 1676:7
opportunity [2] 1687:22, 1692:3
opposed [1] - 1670:1
opposite [1] 1687:16
order [2] - 1685:10,
1685:12
organization [2] 1663:11, 1664:16
organizations [2] 1664:10, 1674:14
originally [1] 1691:14
otherwise [3] 1666:11, 1668:17,
1671:7
outset [1] - 1658:7
outside [1] - 1679:13
outstanding [2] 1690:21, 1692:11
outweighed [1] 1677:6
overbreadth [8] 1678:4, 1678:10,
1678:13, 1678:14,
date
1678:18, 1679:2,
1679:6, 1680:7
overlooks [1] 1668:4
overruled [1] 1681:14
overturns [1] 1678:25
own [3] - 1658:17,
1658:21, 1687:24
P
Page [4] - 1657:2,
1664:21, 1685:11,
1685:13
pages [2] - 1692:9
paid [7] - 1658:20,
1662:12, 1662:19,
1663:9, 1664:15,
1691:12, 1691:16
papers [1] - 1668:7
paragraph [1] 1668:19
paramilitary [1] 1674:14
Parker [1] - 1656:13
Parma [1] - 1686:11
participate [2] 1679:11, 1692:3
participated [5] 1681:23, 1689:9,
1689:15, 1689:16,
1689:17
participating [1] 1680:3
participation [2] 1679:15, 1689:18
particular [2] 1676:11, 1676:22
particularly [4] 1663:1, 1674:11,
1675:21, 1689:22
parties [2] - 1690:16,
1691:1
party [7] - 1660:10,
1660:11, 1660:17,
1660:19, 1660:24,
1666:11, 1685:22
passage [1] 1668:22
passed [1] - 1690:3
Patrick [1] - 1656:19
paul [1] - 1656:12
pay [2] - 1664:17,
1664:23
paying [2] - 1663:7,
1691:12
payment [2] -
1659:22, 1659:25
people [2] - 1688:3,
1689:9
permitted [1] 1678:4
PERSEREC [1] 1672:10
perverse [1] - 1670:6
petition [2] 1679:12, 1689:11
petitioning [1] 1680:4
Philips [8] - 1672:4,
1678:9, 1678:17,
1679:1, 1685:8,
1685:9, 1685:12
picked [2] - 1675:22,
1675:25
place [2] - 1660:4,
1669:25
plainly [1] - 1679:8
plaintiff [6] 1662:25, 1665:23,
1671:9, 1678:4,
1679:23, 1680:12
Plaintiff [1] - 1656:3
plaintiff's [5] 1674:13, 1675:2,
1678:2, 1684:7,
1684:17
PLAINTIFF'S [1] 1684:21
point [18] - 1659:21,
1662:3, 1663:10,
1664:14, 1665:20,
1675:21, 1676:4,
1676:6, 1676:8,
1676:25, 1679:22,
1682:24, 1683:19,
1683:22, 1686:9,
1686:12, 1687:4,
1689:8
points [1] - 1658:13
policy [24] - 1658:17,
1670:7, 1672:18,
1672:20, 1672:25,
1673:1, 1673:24,
1674:10, 1674:15,
1675:1, 1675:3,
1675:8, 1676:13,
1676:16, 1676:21,
1677:2, 1677:11,
1677:15, 1678:8,
1678:9, 1682:2,
1682:25, 1683:21
political [8] 1676:17, 1677:21,
1679:11, 1679:16,
1681:1, 1681:3,
1687:1, 1687:2
polls [1] - 1677:12

portion [1] - 1692:1
posed [1] - 1672:11
position [6] 1659:24, 1666:1,
1668:14, 1669:7,
1669:16, 1670:10
positive [1] 1687:22
possible [1] - 1679:4
Powell [4] - 1672:23,
1676:10, 1676:16,
1676:20
powers [1] - 1675:15
practices [2] 1665:8, 1683:10
precisely [1] 1675:23
precondition [1] 1661:3
predicate [2] 1664:21, 1665:2
prefer [1] - 1692:9
present [3] 1665:19, 1677:19,
1687:22
presented [4] 1669:1, 1675:18,
1690:5, 1690:11
presenting [2] 1663:2, 1673:24
presents [2] 1668:15, 1678:6
President [2] 1677:11, 1689:17
presume [1] 1686:20
prevent [1] - 1681:3
previous [1] - 1681:4
principle [1] 1665:16
principles [2] 1670:6, 1675:16
privacy [6] 1673:14, 1673:17,
1673:18, 1674:14,
1675:3, 1677:5
probability [1] 1672:14
proceed [1] - 1658:4
proceedings [1] 1667:8
process [7] 1663:20, 1663:24,
1666:22, 1677:23,
1678:1, 1678:5,
1688:17
produce [1] 1687:20
produced [1] -
1687:19
Programs [1] 1656:12
prohibit [1] 1678:23
prohibited [3] 1680:5, 1680:21,
1680:22
proof [1] - 1677:24
proposed [2] 1690:17, 1692:14
proposition [1] 1669:2
protecting [1] 1673:2
protection [2] 1664:10, 1685:9
prove [1] - 1675:21
provide [2] - 1661:7,
1680:8
provided [5] 1676:20, 1681:1,
1686:8, 1688:2,
1688:6
providing [1] 1680:11
publicly [2] 1660:23, 1685:21
pure [1] - 1678:6
purely [1] - 1668:15
purport [1] - 1659:15
purpose [12] 1667:7, 1667:9,
1667:12, 1667:19,
1669:17, 1672:1,
1687:25, 1691:8,
1691:18, 1691:22,
1692:4, 1692:9
pursuant [3] 1660:8, 1665:13,
1678:3
puts [1] - 1676:1
putting [1] - 1676:7
Q
qualifications [4] 1666:14, 1676:9,
1676:22, 1676:23
qualify [1] - 1685:20
QUESTION [1] 1664:23
questioned [3] 1667:4, 1682:12,
1682:19
questioning [3] 1663:8, 1674:10,
1683:8
quickly [1] - 1660:4
Case Name/number
quote [10] - 1667:16,

1678:14, 1678:22,
1679:5, 1685:2,
1685:5, 1685:6,
1685:7, 1688:14,
1688:15
quoted [1] - 1668:6
quoting [2] 1668:23, 1678:21
R
raised [1] - 1666:25
rallies [3] - 1679:12,
1679:16, 1681:1
rally [3] - 1680:3,
1680:21, 1681:3
RAND [1] - 1672:10
reach [2] - 1677:18,
1679:13
reaching [1] - 1673:3
read [1] - 1669:19
readily [7] - 1674:3,
1675:2, 1675:7,
1682:3, 1682:7,
1682:15, 1683:12
readiness [2] 1677:5, 1677:20
real [2] - 1679:6,
1683:12
really [4] - 1663:14,
1663:16, 1664:14,
1683:6
reason [2] - 1669:24,
1689:25
reasons [1] 1658:15
rebuts [1] - 1672:2
rebuttal [1] - 1684:20
rebutting [1] 1671:22
received [2] 1672:8, 1674:1
recent [3] - 1676:12,
1676:13, 1679:19
recently [3] - 1668:9,
1680:19, 1687:1
recognize [1] 1678:17
recognized [4] 1665:14, 1671:5,
1678:8, 1678:13
reconsider [1] 1671:17
record [1] - 1667:8
redress [1] - 1680:4
redresses [1] 1679:13
referenced [7] -
date
1665:11, 1677:10,
1678:11, 1678:25,
1679:10, 1679:11,
1681:22
referred [3] 1668:12, 1686:16,
1688:10
referring [7] 1676:12, 1676:13,
1676:19, 1677:11,
1683:13, 1683:15,
1685:23
regard [2] - 1664:20,
1687:12
regardless [1] 1661:4
regards [2] - 1686:9,
1686:15
registered [5] 1660:9, 1660:21,
1666:3, 1666:10,
1685:21
regs [1] - 1680:8
regulate [1] 1678:16
regulations [22] 1658:11, 1667:3,
1677:24, 1679:14,
1679:16, 1679:20,
1679:23, 1680:10,
1680:13, 1680:16,
1680:19, 1680:24,
1681:4, 1681:12,
1681:16, 1686:15,
1686:17, 1686:18,
1687:1, 1687:6
rejected [1] - 1672:5
relation [1] - 1679:7
reliance [2] - 1660:5
relied [3] - 1668:2,
1669:12, 1676:20
relies [1] - 1664:3
rely [5] - 1659:23,
1660:12, 1661:25,
1666:13, 1675:1
relying [3] - 1664:8,
1665:23, 1665:25
remarks [3] 1676:12, 1676:14,
1689:2
remember [2] 1689:4, 1689:21
remind [1] - 1688:11
removed [1] - 1685:5
repeatedly [3] 1666:23, 1668:20,
1677:10
repeating [1] 1684:23
Report [1] - 1672:10
report [2] - 1672:10,

1674:1
representative [1] 1688:3
Republican [13] 1660:9, 1660:10,
1660:17, 1660:18,
1660:19, 1660:24,
1666:3, 1666:7,
1666:11, 1685:21,
1685:22
Republicans [6] 1660:21, 1664:25,
1685:19, 1686:5,
1686:7, 1691:11
request [2] 1671:16, 1690:22
require [7] - 1659:16,
1659:25, 1660:19,
1660:21, 1661:3,
1663:22, 1669:21
required [2] 1658:23, 1671:23
requirement [2] 1658:20, 1661:2
requirements [2] 1664:3, 1688:16
requires [1] - 1667:1
resolve [3] 1666:16, 1668:16,
1691:21
resolved [1] - 1684:9
respect [4] 1679:15, 1681:15,
1681:21, 1692:13
respectfully [3] 1669:6, 1670:3,
1671:16
rest [2] - 1674:13,
1684:8
rested [3] - 1685:6,
1685:7, 1689:25
restrictions [1] 1679:9
restrictive [1] 1673:2
rests [1] - 1675:17
result [5] - 1682:5,
1682:17, 1683:3,
1683:25, 1684:4
reveal [2] - 1682:2,
1683:16
review [2] - 1670:19,
1680:23
reviewed [5] 1659:17, 1676:17,
1682:8, 1691:2
rights [3] - 1679:12,
1689:11, 1689:19
ripe [1] - 1684:16
risk [6] - 1672:11,

1672:19, 1672:23,
1673:2, 1675:13,
1677:19
Riverside [1] 1658:1
Rocha [4] - 1681:25,
1683:15, 1684:2
room [1] - 1656:15
Rostker [1] - 1674:5
Roulette [1] 1678:20
ruled [2] - 1660:3,
1685:5
ruling [2] - 1662:13,
1665:15
rulings [2] - 1670:2,
1686:13
runs [2] - 1670:5,
1674:7
Ryan [1] - 1656:13
S
S.D [1] - 1671:4
sake [1] - 1680:1
Salerno [11] 1669:22, 1670:6,
1671:2, 1671:7,
1671:8, 1671:9,
1671:10, 1671:12,
1671:20, 1671:23,
1677:25
scientists [1] 1675:9
Scott [1] - 1656:14
scrutiny [1] 1671:19
Seattle [1] - 1678:20
Second [1] - 1685:15
second [4] - 1658:9,
1677:8, 1687:21,
1690:10
second-guessing
[1] - 1677:8
secondly [1] 1659:18
Secretary [1] 1689:16
section [1] - 1686:2
Section [3] 1679:25, 1685:23,
1685:25
see [2] - 1660:6,
1665:6
seek [1] - 1678:16
seem [1] - 1687:15
self [2] - 1660:24,
1685:21
self-identified [1] 1660:24

self-identify [1] 1685:21
send [2] - 1664:18,
1692:18
sent [1] - 1682:10
separate [1] - 1673:7
separation [1] 1675:15
September [1] 1662:21
serious [1] - 1688:7
serve [4] - 1672:16,
1673:15, 1677:4,
1677:14
served [1] - 1674:17
serves [2] - 1660:6,
1671:25
servicemember's [1]
- 1677:6
servicemembers [9]
- 1673:17, 1673:19,
1675:18, 1676:10,
1676:22, 1676:24,
1677:1, 1687:17,
1688:2
servicemembers' [1]
- 1687:9
set [5] - 1664:10,
1670:19, 1670:21,
1671:6, 1690:9
sexual [5] - 1673:5,
1673:8, 1673:9,
1673:11, 1677:5
share [1] - 1671:13
short [1] - 1658:14
shortly [1] - 1662:19
show [1] - 1665:17
showing [3] 1662:9, 1662:16,
1690:12
shown [2] - 1662:8,
1674:12
shrift [1] - 1658:14
side [3] - 1675:22,
1676:1, 1688:25
sides [3] - 1672:8,
1690:17, 1692:7
similar [1] - 1674:22
similarly [1] 1673:12
simply [2] - 1661:11,
1688:1
Simpson [1] 1656:14
single [1] - 1658:16
situation [2] 1680:15, 1680:21
six [6] - 1662:21,
Case Name/number
1662:22, 1675:18,
1687:16, 1687:20,
1688:2
six-month [1] 1662:21
Sixth [1] - 1686:11
skills [1] - 1677:6
social [1] - 1675:9
Society [1] - 1678:24
sociologists [1] 1672:21
sodomy [1] - 1690:3
sorry [1] - 1684:1
sources [3] 1668:11, 1668:24,
1669:10
Special [1] - 1686:2
special [1] - 1686:7
specific [1] 1664:14
specifically [4] 1667:20, 1671:5,
1672:4, 1674:24
speech [5] 1678:10, 1678:17,
1678:21, 1679:9,
1680:3
spend [1] - 1673:23
spoken [1] - 1678:16
squared [1] 1669:19
squarely [1] - 1684:5
stand [2] - 1669:2,
1687:17
standard [4] 1664:9, 1670:12,
1670:15, 1690:10
standing [31] 1658:8, 1658:13,
1659:22, 1660:7,
1661:7, 1661:11,
1662:2, 1662:3,
1662:4, 1662:5,
1662:14, 1663:1,
1663:20, 1663:21,
1664:3, 1664:5,
1664:19, 1665:12,
1665:15, 1665:18,
1665:25, 1666:5,
1666:18, 1666:20,
1686:9, 1691:5,
1691:7, 1691:10,
1691:19, 1692:4
start [1] - 1658:13
starts [1] - 1684:24
state [1] - 1660:10
State [1] - 1669:23
statement [3] 1683:25, 1684:3,
1684:4
date
statements [1] 1677:11

STATES [2] 1656:11, 1656:18
status [1] - 1678:8
status-based [1] 1678:8
statute [36] 1658:11, 1665:13,
1667:1, 1667:2,
1667:6, 1667:7,
1667:25, 1668:5,
1668:16, 1668:25,
1669:3, 1669:7,
1670:2, 1670:18,
1671:22, 1672:3,
1674:21, 1674:24,
1676:4, 1676:9,
1677:22, 1677:23,
1678:7, 1678:17,
1679:6, 1679:13,
1679:25, 1680:2,
1680:5, 1680:12,
1680:18, 1681:2,
1684:13, 1687:5,
1688:21, 1690:12
statute's [1] - 1679:7
statutes [1] 1678:15
step [1] - 1684:1
still [5] - 1661:14,
1663:14, 1663:16,
1664:16, 1668:6
Stincer [2] - 1664:12,
1665:12
stories [1] - 1688:5
story [1] - 1683:16
Street [1] - 1656:6
strike [1] - 1675:13
strong [1] - 1678:14
structures [1] 1664:2
Stuart [1] - 1656:20
studies [4] - 1672:9,
1672:10, 1674:25,
1675:1
study [2] - 1675:4,
1675:5
subject [10] 1658:14, 1666:20,
1670:19, 1675:11,
1676:11, 1678:6,
1678:19, 1679:23,
1683:20, 1688:16
subjected [2] 1682:3, 1683:17
subjects [1] 1677:14
submission [1] 1692:8
10
submit [4] - 1670:3,

1674:5, 1690:18,
1692:15
submitted [1] 1690:17
substantial [1] 1679:7
sufficient [1] 1671:2
suggest [1] 1685:19
suggested [1] 1687:8
suggests [1] 1687:19
Suite [2] - 1656:7,
1656:20
summary [1] 1686:14
superior [2] 1682:11, 1683:10
Supp [1] - 1664:1
support [3] 1675:22, 1685:11,
1686:20
supported [1] 1672:24
Supreme [6] 1669:14, 1674:6,
1674:8, 1678:12,
1678:13, 1679:5
surround [1] 1677:11
surrounding [1] 1667:6
susceptible [1] 1677:7
suspect [1] 1675:22
sustain [1] - 1666:19
sweep [1] - 1679:8
system [3] - 1676:1,
1689:4
T
talks [1] - 1668:23
temporarily [1] 1672:15
ten [2] - 1663:10,
1692:9
tension [5] - 1673:5,
1673:8, 1673:9,
1673:11, 1677:5
tentative [1] 1665:14
term [1] - 1660:19
terms [5] - 1667:19,
1670:17, 1671:7,
1673:8, 1678:16
test [3] - 1670:16,
1670:20, 1671:6
testified [7] - 1659:4,
1664:21, 1681:24,
1682:1, 1682:20,
1689:10, 1691:7
testify [1] - 1660:17
testimony [32] 1658:15, 1658:23,
1659:2, 1659:7,
1660:15, 1661:1,
1661:9, 1661:22,
1663:5, 1663:6,
1663:13, 1663:21,
1665:3, 1665:7,
1666:9, 1666:16,
1668:3, 1670:4,
1672:7, 1673:4,
1673:11, 1674:7,
1675:20, 1676:19,
1676:25, 1682:9,
1683:1, 1687:9,
1687:14, 1687:16,
1691:5, 1691:10
tests [1] - 1670:19
Texas [1] - 1690:3
THE [39] - 1658:3,
1658:22, 1659:2,
1659:19, 1660:16,
1661:14, 1661:17,
1661:21, 1662:18,
1663:3, 1665:3,
1665:22, 1667:4,
1667:11, 1667:15,
1667:22, 1668:18,
1669:9, 1675:24,
1676:5, 1676:12,
1679:19, 1679:22,
1680:15, 1681:4,
1681:8, 1681:14,
1681:20, 1682:7,
1682:18, 1683:1,
1683:5, 1683:18,
1683:23, 1684:19,
1690:15, 1692:6,
1692:17, 1692:25
theory [2] - 1661:3,
1665:24
therefore [5] 1661:7, 1684:7,
1688:8, 1689:10,
1690:12
they've [1] - 1662:1
third [1] - 1690:10
thoughts [1] 1690:25
threshold [1] 1663:1
throughout [4] -
1668:2, 1669:1,
1688:10, 1688:23
timing [1] - 1663:4
today [3] - 1684:16,
1688:25, 1692:10
tomorrow [2] 1686:18, 1687:3
took [1] - 1690:2
training [3] - 1681:9,
1681:11, 1681:13
transcript [4] 1660:23, 1664:22,
1665:6, 1682:9
treated [1] - 1664:17
treatment [1] 1663:19
trial [9] - 1658:12,
1666:24, 1669:1,
1671:12, 1687:2,
1690:11, 1690:22,
1691:8, 1691:21
triggered [1] 1678:10
trouble [2] - 1683:6,
1683:12
trump [1] - 1681:11
trumped [1] - 1675:9
try [1] - 1685:19
trying [1] - 1687:11
Tuesday [1] 1692:16
turn [1] - 1681:25
turning [1] - 1662:7
two [4] - 1658:12,
1663:8, 1673:23,
1682:9
U
ultra [1] - 1665:10
unacceptable [2] 1672:11, 1677:19
unconstitutional [2]
- 1674:21, 1690:13
uncontradicted [2] 1691:4, 1691:10
under [19] - 1658:20,
1660:1, 1660:12,
1661:3, 1664:23,
1666:15, 1671:10,
1671:23, 1677:24,
1678:5, 1679:25,
1680:5, 1680:6,
1682:1, 1683:20,
1685:19, 1687:23,
1689:19
undermine [2] 1666:1, 1677:4
understood [1] -
Case Name/number
1689:8
undisputed [1] 1658:19
undue [1] - 1670:25
unethical [1] 1675:5
unique [3] - 1671:6,
1686:5, 1688:24
unit [9] - 1672:11,
1672:14, 1672:18,
1673:9, 1673:13,
1674:15, 1675:6,
1677:4, 1677:19
uNITED [1] - 1656:11
UNITED [1] 1656:18
units [1] - 1688:8
unsure [1] - 1671:12
unusual [1] 1688:24
up [1] - 1668:10
upheld [1] - 1684:13
urge [1] - 1661:5
useable [1] 1690:18
usual [1] - 1686:1
utterly [1] - 1677:1
V
valued [1] - 1673:19
various [1] - 1690:2
Vegas [1] - 1668:8
venturing [1] 1668:17
viewed [1] - 1661:9
violates [2] 1675:15, 1677:22
vires [1] - 1665:10
Virginia [1] - 1656:20
virtue [1] - 1680:23
voluntarily [2] 1682:20, 1683:7
voluntary [1] 1684:2
voted [1] - 1660:18
votes [1] - 1660:18
W
War [1] - 1674:17
Washington [2] 1656:15, 1669:23
waters [1] - 1668:21
ways [1] - 1687:12
wealth [1] - 1675:16
Wednesday [4] 1692:14, 1692:19,
date
1692:22
week [2] - 1692:10,
1692:14
weeks [4] - 1658:12,
1672:7, 1673:23,
1682:10
West [1] - 1656:6
WHITE [1] - 1656:4
whole [1] - 1688:9
willing [2] - 1672:19,
1672:23
winds [2] - 1687:1,
1687:3
wisdom [2] 1673:21, 1674:3
wish [1] - 1691:25
witness [3] 1662:19, 1687:15,
1687:22
witnesses [8] 1663:9, 1672:8,
1676:2, 1676:4,
1681:23, 1687:12,
1687:13, 1687:20
Witt [16] - 1670:12,
1670:15, 1670:16,
1670:18, 1670:21,
1671:13, 1671:14,
1671:17, 1671:24,
1685:2, 1685:16,
1688:13, 1688:14,
1688:15, 1690:10
woman's [2] 1671:1, 1671:2
women [2] - 1673:7,
1674:16
WOODS [3] 1684:22, 1691:25,
1692:12
woods [1] - 1658:14
Woods [8] - 1656:5,
1667:4, 1670:22,
1676:23, 1677:9,
1678:24, 1679:10,
1684:20
Woods' [3] - 1672:2,
1681:6, 1681:8
wording [1] 1658:24
WordPerfect [1] 1690:19
words [3] - 1659:10,
1665:16, 1678:16
worse [1] - 1661:8
written [1] - 1660:20
Y
year [7] - 1661:23,
11
1662:20, 1662:21,
1663:10, 1664:15,
1665:17, 1680:20
years [5] - 1659:17,
1663:10, 1663:11,
1663:12, 1686:23
yesterday [3] 1675:7, 1690:21,
1690:25
Case Name/number
date

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Case 2:04-cv-08425 Trial Day 8 Vol 2

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

LOG CABIN REPUBLICANS,

REPORTER'S TRANSCRIPT OF TRIAL PROCEEDINGS

Friday, July 23, 2010

Friday, July 23, 2010

THERESA A. LANZA, RPR, CSR

Trial Day 8, Volume II

UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES ARMY

Friday, July 23, 2010

Trial Day 8, Volume II

Friday, July 23, 2010

Trial Day 8, Volume II

Riverside, California; Friday, July 23, 2010; 10:26 A.M.

Mr. Freeborne, you may proceed.

DEFENSE'S CLOSING ARGUMENT

From the outset of this case, we've told the Court

Your Honor, may it please the Court.

that, first, Log Cabin lacks standing to bring this

constitutional challenge and, second, Log Cabin has failed to

bring a legally cognizable challenge to the "Don't Ask, Don't

Tell" statute and implementing regulations.

I'll start with standing.

confirms that Log Cabin cannot identify a single member who

The testimony that you have now heard

It is now undisputed that Mr. Nicholson has never

paid dues to Log Cabin, a requirement for membership under

Log Cabin's own articles of incorporation.

Two weeks of trial has now confirmed both of these

Excuse me for interrupting you, but the

testimony and the evidence is that what's required is -- the

exact wording is not "annual dues."

Friday, July 23, 2010

It's by making a financial

Trial Day 8, Volume II

Your Honor, I'm --

And so the testimony by -- I think it was

Mr. Meekins, who was on the national board, I believe, but I

think he also testified he was a lawyer, but he had an advanced

degree, a master's in business administration, if I recall

But, in any event, his testimony was that since the

bylaws say making a financial contribution annually, that could

be other than a monetary contribution.

But it doesn't use the

words -- he talked about an in-kind contribution.

event, it doesn't say "dues"; it says an annual financial

contribution -- I think it says "financial contribution

all, Mr. Meekins did not purport to speak with authority on

what the articles require one way or the other.

he hadn't reviewed them in years.

The point that I was moving to, Your Honor, is that

they're basing standing upon Mr. Nicholson's payment of dues.

They rely upon his honorary membership as being the basis.

Your Honor, to be clear, first of

But they're in evidence.

Our position is, we believe that the articles are

Friday, July 23, 2010

Trial Day 8, Volume II

law the articles of incorporation control.

Now, we understand that the Court has ruled on this