By Mike Dorf

Last week, in Log Cabin Republicans v. U.S., a panel of the 9th Circuit Court of Appeals dismissed as moot an appeal from a ruling of a federal district judge invalidating the Don't-Ask-Don't-Tell (DADT) policy.  The court's reasoning was simple: Because the armed forces have now implemented the congressional repeal of the policy, it presents no ongoing controversy.  The plaintiffs--who won in the district court but cross-appealed on their equal protection claim--argued that the ruling was not moot because the claims for declaratory relief fit into one or both of two exceptions.  The court rejected that argument and the case was over.

But not before Judge O'Scannlain chimed in with a somewhat unusual concurrence.  Although he "fully concur[red]" in the mootness dismissal, he went on to address the merits to help clear up "uncertainty" about the scope of Lawrence v. Texas, on which the district court had relied in invalidating DADT.  Here I want to explore some of the questions raised by his concurrence.

Lawrence invalidated a Texas law imposing criminal penalties for "homosexual conduct" but did not expressly state that sodomy, same-sex intimacy, or sexual intimacy more generally is a "fundamental right" as that term has been defined in the Court's substantive due process jurisprudence.  The district court thought that Lawrence did recognize a fundamental right to "certain intimate conduct," including the conduct that could result in dismissal from the armed forces under DADT.  Judge O'Scannlain thought that in light of other substantive due process rulings, Lawrence should be read more narrowly.

On the merits, I must say that I find the district court's reading more persuasive.  It's true that Justice Kennedy's opinion in Lawrence does not use the magic words "fundamental right" (except in discussing Bowers v. Hardwick), but that's mostly because the Court's SDP jurisprudence as a whole over the last twenty years has instead talked in terms of "liberty."  If we are to translate the ruling into the older language, Lawrence is better read as deeming sexual intimacy fundamental than as merely invalidating a penalty.  After all, the Court does not at all rely on its Eighth Amendment jurisprudence or anything like it.

That said, I acknowledge that Lawrence leaves open the question that divided the district judge and Judge O'Scannlain.  Had the merits been properly presented, Judge O'Scannlain's reading of Lawrence would have been one plausible approach, albeit one with which I disagree.
But the merits weren't presented.  The majority dismissed the case as moot.  Had Judge O'Scannlain disagreed with the mootness holding, he would have been well within his rights to address the merits or not.  There is no uniform practice in such matters.  Some judges will accept the majority's holding on the jurisdictional point and thus not say anything on the merits.  Other judges will say something like this: "Because I disagree with the majority and think that this court has jurisdiction, I shall address to say how I would resolve the case."  But Judge O'Scannlain agreed that the case was moot, so this wasn't a real option.

Prior to the Supreme Court's 1998 decision in Steel Co. v. Citizens for Better Environment, lower courts sometimes employed "hypothetical jurisdiction."  Faced with a hard question as to jurisdiction but a relatively easy case on the merits for rejecting the claim or defense of the party seeking jurisdiction, courts might say that they assume jurisdiction for the sake of argument, but reject the claim or defense on the merits.  Under such a regime, Judge O'Scannlain might have said that he didn't want to decide the mootness issue because he thought the plaintiffs should clearly lose.  Steel Co. rejects hypothetical jurisdiction as inconsistent with Article III of the Constitution, however, so that's out.  And even if Steel Co. hadn't rejected hypothetical jurisdiction, there would still be no basis for Judge O'Scannlain to rely on it, as he did not in any way indicate that he thought the mootness question (the jurisdictional issue here) difficult.

Does that mean that Judge O'Scannlain's move here is unprecedented?  No.  The Supreme Court in Marbury v. Madison did the same thing: The Court addressed the merits -- finding that Marbury had a legal entitlement to a remedy for the withholding of his commission -- but then announcing that there was no jurisdiction. Nonetheless, this feature of Marbury has long been criticized as an effort by CJ John Marshall to poke his rival (and distant cousin) Thomas Jefferson in the eye in a way that would not give Jefferson a way to poke back.  So despite Marbury's canonical status with respect to judicial review, it's not exactly a good precedent for Judge O'Scannlain's merits discussion accompanying a no-jurisdiction holding.

Nor is Judge O'Scannlain's stated rationale for his merits discussion very persuasive.  He writes that he wants to clear up "uncertainty" created by the district court opinion, but precisely because Judge O'Scannlain's discussion on the merits has no precedential force--even less precedential force than a concurrence or dicta in a case in which there is jurisdiction--it's not at all clear how Judge O'Scannlain could be resolving such uncertainty.  At most he is alerting the public to the existence of uncertainty by showing that judges disagree about the scope and implications of Lawrence.  Yet he could have accomplished that task by simply stating something like the following: "In dismissing this case as moot, we express no opinion on the district court's resolution of the merits, which, following this ruling, and indeed, regardless of what would have occurred on appeal, sets no precedent."  Such a statement would have been superfluous anyway, at least for anyone reasonably familiar with federal court practice.

So, at the end of the day, is there anything to be said for what Judge O'Scannlain did here?  That question is impossible to answer without regard to what one thinks about the merits.  If a district judge writes an opinion that an appeals court judge regards as very badly mistaken and potentially mischievous--an opinion concluding that the Establishment Clause doesn't apply to the states, say, or that children of undocumented immigrants aren't citizens--we could well understand why an appeals court judge would want to write an opinion disavowing that ruling, even if dismissing the appeal as moot.  Thus, the key to understanding Judge O'Scannlain's concurrence in Log Cabin Republicans is to see that he regards the district court decision invalidating DADT as not just wrong but egregiously so.  I find that unsettling, to say the least.