Plantiff's Motion to Compel Production of Documents - The DADT ...

Case 2:04-cv-08425-VAP-E Document 130 Filed 03/19/10 Page 6 of 83 Page ID #:788
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eroded over time, that the Sentencing Commission more recently
had recommended to Congress to repeal the disparity, and the
Ninth Circuit rejected that argument. In Small v. Ashcraft the
Second Circuit said that a Congressional decision that a
statute is unfair, outdated, and in need of improvement does
not mean that the statute when enacted was wholly irrational or
for purposes of rational basis review unconstitutional. In
Howard v. United States the Federal Circuit indicated that even
a Congressional repeal of a statute wouldn't mean that the
statute prior to appeal lacked any rational basis.
So if you put all of those authorities together and
what difference does it make what is happening now in terms of
whether people within or without the government are in public
statements or otherwise condemning the "Don't Ask, Don't Tell"
policy as misguided, irrational, unwise, unfair, unnecessary,
what difference does it make from a constitutional standpoint?
MR. WOODS: Well, your Honor, the constitutional law
issues governing this case have changed since the statute was
passed. Since the United States Supreme Court decided the
Lawrence v. Texas case the constitutional framework of the case
has changed. The Ninth Circuit recognized that --
THE COURT: That's change in the law and I understand
that that may affect the constitutional analysis. But what
would changes of facts, how would they matter?
MR. WOODS: Well, in the Lawrence case, your Honor,
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