2010’s events predict more, and less, in 2011

If past is prologue, 2011 should turn out to be a fairly decent one for the LGBT community. It’s not that everything turned out so rosy for the community in 2010, but the gains registered more powerfully than the losses.

President Obama

If past is prologue, 2011 should turn out to be a fairly decent one for the LGBT community. It’s not that everything turned out so rosy for the community in 2010, but the gains registered more powerfully than the losses.

Here’s a look at the top five news stories for the LGBT community in 2010 and why, in many cases, they signal a better tomorrow:

  1. Congress passes a bill to repeal Don’t Ask Don’t Tell. Anyone who was paying attention in 1993 knows what a devastating setback the community suffered with the codification of the military’s ban on gays. The community itself had asked the newly elected Democratic President, Bill Clinton, to end the military’s long-standing policy banning gays from service. But instead, Senator Sam Nunn (D-Georgia) orchestrated a parade of testimony and innuendo to suggest that the mere presence of gays would violate the “sexual privacy” of heterosexual servicemembers. One female Naval petty officer testified that, “You are asking me to sleep and shower with homosexuals. You are asking me to expose my sexuality….” Not surprisingly, 56 percent of the public opposed allowing “homosexuals” to serve “openly” in the military in 1993. In December 2010, only 21 percent of Americans felt that way. And Democratic President Barack Obama, using a strategy of sticks and carrots that sometimes angered the LGBT community, helped drive through passage of a bill that will eventually lead to a dismantling of the ban.

    What does that say about 2011? Given the shaky economy, high unemployment, and intense partisan divide in Congress, there is little likelihood the Obama administration will take on another piece of pro-LGBT civil rights legislation in 2011. The presidential election campaign of 2012 begins in earnest now and President Obama must tend to a wide variety of constituencies, as well as Middle America in general. But he has shown—even before repeal of DADT—that his administration is willing to use its power to adopt more LGBT friendly regulations and policies that will advance the LGBT civil rights ball down the field. And that is likely to be where the action will be, for the Obama administration, in 2011.

  2. Federal judge rules Proposition 8 unconstitutional. U.S. District Court Chief Judge Vaughn Walker ruled August 4, 2010, that California’s voter-approved constitutional amendment banning same-sex marriage violates the U.S. Constitution’s guarantee of equal protection and due process. The result came following a three-week-long trial in San Francisco during which famed conservative attorney Ted Olson and famed liberal attorney David Boies mounted a comprehensive case against Proposition 8, passed in 2008. They showed how the initiative harmed gay people as a minority and was driven by the fear and animus of those who sought its passage. The participation of Olson and Boies has made this the most high-profile legal challenge in LGBT history. And it seems almost certain to bring before the U.S. Supreme Court the question of whether the bans in California and in 44 other states (by law or decree) are permissible. The 9th Circuit U.S. Court of Appeals will weigh in on the dispute in 2011.

    What does that say about 2011? The appeal before the three-judge panel of the 9th Circuit, on December 6, seemed to go well for opponents of Proposition 8. Questions from the judges seemed to indicate they are seriously considering whether Yes on 8 proponents even have standing to bring their appeal. But regardless of how they rule—on standing and/or on constitutional issues—their decision(s) will almost certainly be appealed to the full 9th Circuit bench and then, eventually to the U.S. Supreme Court. The composition of the current Supreme Court, coupled with the activist tendencies recently demonstrated by its conservatives, makes an outcome there completely unpredictable. A ruling on the constitutional issues will probably not be in front of the highest court until late 2011 at the earliest, and more likely 2012. But a win at the 9th Circuit level—even if later overturned by the Supreme Court—would go some distance to undermine the political argument that Walker was just an “activist judge.” It would also provide another boost of momentum for public opinion to continue its journey toward getting used to the idea of gay couples obtaining marriage licenses.

  3. Republicans win control of the House. History has shown that, to be successful at passing pro-gay legislation, it’s best to have a Democratic president and Democratic majorities in both houses of Congress. For two years, the LGBT community has experienced that generally supportive political climate in Washington. But on November 2, 2010, Republicans won enough seats in the House to take over majority control starting in January 2011. They also increased their margin in the Senate, from 41 seats to 47.

    What does that say about 2011? Immediately, there will be “zero” chance of any pro-gay legislation passing in the next Congress, says Rep. Barney Frank and others. No movement on the Employment Non-Discrimination Act (ENDA), no movement on immigration rights for gay couples, no movement on ending tax penalties for gays who provide health coverage to their partners or spouses through work. It also means the LGBT community must switch from an offensive mode in Congress to a defensive one. Given the largely unbroken Republican opposition to repeal of Don’t Ask, Don’t Tell, it would not be a surprise to see the new Republican chairman of the House Armed Services Committee, Rep. Buck McKeon (R-Calif.), hold a hearing about whether DADT repeal can, in fact, be implemented without negative consequences to military readiness. He said, in November, he would hold a hearing to examine the Pentagon’s report regarding repeal implementation. How far might Republicans try to leverage their power in the new Congress? Note this: The new chairman of the House Committee on Homeland Security just announced he would hold a hearing on the “radicalization of the American Muslim community.” Apparently, the sky’s the limit.

  4. The U.S. Supreme Court issued two gay-helpful decisions. The nation’s highest court issued two decisions in June that bode well for the LGBT community, both on cases from the 9th Circuit. First, in Doe v. Reed, it upheld a Washington State law that requires that petitions for putting issues on the ballot be made public. And second, in Christian Legal Society v. Martinez, it upheld a California college’s policy banning discrimination based on sexual orientation in campus group membership. In Doe, the high court held that state laws requiring public disclosure of petitions for ballot measures protect the integrity of the electoral process. A group opposed to domestic partnerships had argued its petitions should be protected from disclosure, claiming petition signers would be harassed by people with a different view. In Christian Legal, the decision was of greater symbolic value than legal: It refused to say that religious beliefs always trump non-discrimination policies. A Christian student group at a public law school in San Francisco had claimed free exercise rights to get around the schools non-discrimination policy.

    What does that say about 2011: As much as the Doe decision was helpful, it was also indecisive. Chief Justice John Roberts, writing for the 8 to 1 majority, suggested to plaintiffs that they might get a better result if they limited their challenge to how the state law impacted petition signers for the domestic partnership referendum specifically. The plaintiffs said they would, so the case is almost certainly going to be back, probably in 2011. And there seems little doubt that Christian Legal, or some other right-wing religious entities, will find a way back, too. Such a group has a petition pending before the court now, challenging the city’s right to prevent them from mounting a ballot initiative against D.C.’s marriage law.

  5. Republican Scott Brown wins Ted Kennedy’s seat. Martha Coakley, Massachusetts’ pro-gay attorney general, was supposed to be have been a walk-in to win Democratic Senator Ted Kennedy’s seat in the U.S. Senate after his death. But a relatively unknown Republican state senator Scott Brown trounced her in the special election last January. The Boston Globe called it “one of the biggest upsets in Massachusetts political history,” but it was bigger than that. It completely changed the dynamics of the 111th Congress and quashed the “hope and change” prospects the LGBT community expected from the inauguration of Democratic President Barack Obama and a Democratic majority in the House and Senate. Brown’s election took from Democrats the 60th vote they needed to ensure that legislation reached the floor of the Senate. And Republicans used that advantage throughout the year to thwart the advancement of numerous pieces of legislation, including a measure to repeal Don’t Ask, Don’t Tell. The Senate became a quagmire of partisan warfare for the sake of partisan gain though neither side really gained much from it.

    What does that say about 2011: For the foreseeable future, Congress is like a ship on a stormy sea of waves, rolling to one side and then the other. The LGBT community has already demonstrated it knows how to shift its own balance in order to keep that ship moving in the right direction. It somehow convinced Brown and five other Republicans to jump the GOP ship and join the Democrats to enable DADT repeal to come to the floor of the Senate and be passed. Strengthening those alliances, however temporary and issue-specific, will be important to defending current civil rights gains and pushing for others in the future.

National LGBT youth suicide prevention task force and grants announced

The federally supported National Action Alliance for Suicide Prevention (NAASP) on December 30 officially announced a task force dedicated to suicide prevention among LGBT youth.

Charles Robbins

The federally supported National Action Alliance for Suicide Prevention (NAASP) on December 30 officially announced a task force dedicated to suicide prevention among LGBT youth.

Pamela Hyde, the openly gay head of the Substance Abuse and Mental Health Services Administration (SAMHSA) revealed plans in November to form such a task force. And, on the same day as the Alliance officially announced the task force, SAMHSA separately announced the availability of up to $5.5 million for campus suicide prevention programs that meet the needs of youth the Alliance has identified as being at particular risk, including LGBT youth.

Lesbian, gay, and bisexual youth are from 1.5 to seven times more likely to report having attempted suicide than their non-LGBT peers, according to the Alliance. Transgender youth, although less well studied, are believed to have higher rates of suicidal behavior as well.

The task force will be led by Charles Robbins, head of The Trevor Project, which operates an LGBT youth suicide prevention program nationwide, and Kevin Jennings, the Department of Education’s Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools. Jennings, an openly gay appointee, founded the Gay, Lesbian, and Straight Education Network (GLSEN).

The Alliance, launched by Secretary of Health Kathleen Sebelius and Secretary of Defense Robert Gates in September, is a public-private partnership supported by SAMHSA, part of the U.S. Department of Health and Human Services. It is designed to advance and update the 2001 National Strategy for Suicide Prevention.

Robbins said in an interview that he believes the task force will be able to inform government agencies as well as private non-profits about “appropriate, evidence-based suicide prevention programming that works for this community.”

He noted that many different government agencies—including the Department of Education, the Department of Health and Human Services, and the Department of Defense—are involved in suicide prevention, and the task force will be able to “provide some linkages” among the efforts.

He also hopes the task force will be able to share with and learn from the other Alliance task forces addressing high-risk populations, including American Indians/Alaska Natives and military service members and veterans.

He said he and Jennings are still in the process of naming members to the task force and would be convening in January to identify specific goals for the group.

A string of suicides by teens bullied for being gay or perceived to be gay captured nationwide media attention last fall and prompted calls for action from LGBT organizations, celebrities, and the U.S. Department of Education, among others. Robbins said, however, that these incidents “are a fraction of what occurs on a regular basis.”

In fact, the federal government has known about suicide as a health risk for gay and lesbian youth for over 20 years. The Report of the Secretary’s Task Force on Youth Suicide, published by the Department of Health and Human Services (HHS) in 1989, noted the higher risk of suicides and suicide attempts among that population.

Some questioned the report’s methodology, but subsequent studies have upheld the general conclusion that gay and lesbian youth are a group at high risk for suicide. But pressure from the right wing led the administration of George H.W. Bush to suppress the information in that report, according to a 1994 piece by Chris Bull in the Advocate.

In December 1994, under President Clinton, the federal government held its first conference on the primary care needs of lesbian and gay youth. One of the outcomes was a 1997 book by the event coordinators, Dr. Caitlin Ryan, Director of the Family Acceptance Project at San Francisco State University, and Dr. Donna Futterman, director of the Adolescent AIDS Program at Albert Einstein College of Medicine. The book included a section on higher suicide risk among gay and lesbian youth.

And the 2001 National Strategy for Suicide Prevention, published under Surgeon General David Satcher just as President George W. Bush took over from President Clinton, also noted studies with the same conclusions. It recommended that “prevention programs for sexual minority populations” should consider “issues of stigma, labeling, privacy, and appropriateness of referrals” so they are “safe and effective.”

In 2008, the Suicide Resource Prevention Center, created by HHS to help states and communities “implement and evaluate suicide prevention programs,” released a 63-page white paper, Suicide Risk and Prevention for Lesbian, Gay, Bisexual, and Transgender Youth.

The paper said lesbian, gay, and bisexual youth often lack “important protective factors such as family support and safe schools.”

“It would be difficult to overstate the impact of stigma and discrimination against LGBT individuals in the United States,” said the white paper. “Stigma and discrimination are directly tied to risk factors for suicide.”

Robbins said that work among government entities on suicide prevention among LGBT youth “has been happening over a significant period of time.” He has been a member of the Consumer Subcommittee of SAMHSA’s National Suicide Prevention Lifeline for three years, and said that SAMHSA has been “deeply committed” to addressing LGBT youth suicide prevention.

In government, however, “it takes a long time for things to happen,” he said.

The task force was conceived before the media attention around the LGBT suicides last fall, he noted. The attention last fall, however, “helped align the government with ways they can address the problem,” and reaffirmed that “this is a public health issue.”

North Carolina Ruling Jeopardizes Same-Sex Families

The North Carolina Supreme Court on December 20 voided the adoption by a lesbian mother of the child who she and her former partner, the biological mother, were raising together. The ruling jeopardizes the legality of all other such “second-parent adoptions” in the state.

Paul Martin Newby
Paul Martin Newby

The North Carolina Supreme Court on December 20 voided the adoption by a lesbian mother of the child who she and her former partner, the biological mother, were raising together. The ruling jeopardizes the legality of all other such “second-parent adoptions” in the state.

State Senator Julia Boseman and her former partner, Melissa Jarrell, planned for a child together, and Jarrell consented to Boseman adopting the child in 2005, when he was almost three, according to court documents.

Boseman was the first out member of the state General Assembly but did not seek reelection this past fall.

The couple split in 2006, and Boseman sought joint custody. Jarrell first tried to initiate a class action lawsuit to invalidate all second-parent adoptions in the state. Under pressure from the American Civil Liberties Union (ACLU) of North Carolina and others, however, she dropped the suit.

Jarrell acknowledged in court that Boseman was “a very good parent” but nevertheless petitioned for sole custody, claiming the adoption should never have been granted to Boseman because North Carolina law does not permit second-parent adoptions. A trial court granted joint custody but did not rule on the adoption, which had been granted in another district.

Jarrell first appealed to the state Court of Appeals, which upheld both the custody order and the validity of the adoption. Then, she appealed to the state Supreme Court, which upheld the lower court ruling granting Boseman joint custody. But a 5 to 2 majority overturned the appeals court ruling in regards to the adoption.

The majority said the adoption granted to Boseman was invalid from its beginning. State statutes, said Associate Justice Paul Newby, writing for the majority, permit adoptions only if the existing parent gives up all parental rights or is married to the person seeking to adopt, as in the case of a stepparent. Because this was not the situation for Boseman, the adoption court did not have the authority to grant the adoption, said the majority.

Two justices dissented. Patricia Timmons-Goodson and Robin E. Hudson said Jarrell had not appealed within the proper time limits. And Timmons-Goodson noted that state law requires adoptions to be final because that is in the best interest of minors. The law allows challenges, she said, only “in narrow circumstances,” none of which applied here.

Hudson also wrote that she felt the matter of the adoption court’s jurisdiction was, at most, “an error of law” and should not have led to a voiding of the adoption.

The ruling calls into question the validity of all other second-parent adoptions in North Carolina. Such adoptions have been granted in only two counties and impact perhaps several hundred families, according to Ian Palmquist, Executive Director of Equality North Carolina. (An exact count is impossible because most adoption records are sealed.)

Shannon Minter, Legal Director of the National Center for Lesbian Rights, said the court was unclear about whether existing adoptions are now automatically void but he believes they are now more vulnerable to challenge. Minter urged all parents who have obtained second-parent adoptions in North Carolina to consult a knowledgeable family law attorney.

Greg Nevins, Supervising Senior Staff Attorney at Lambda Legal Defense and Education Fund, agreed the status of the other adoptions remains unclear at this point, but “at a minimum, [the ruling] is causing a lot of anxiety.”

Nancy Polikoff, Professor of Law at American University, said, however, that she believes the ruling makes all second-parent adoptions in the state “void.”

“When the issue of legal parentage arises,” said Polikoff, “…the adoption decree will be a meaningless piece of paper.”

A separate North Carolina law prohibits unmarried couples from jointly petitioning to adopt a child, although gay and lesbian people may do so as individuals.

A number of ultra-conservative organizations submitted friend of the court briefs in support of Jarrell, including the American College of Pediatricians—a group of conservative doctors who split from the mainstream American Academy of Pediatrics when the latter endorsed adoption by gay parents.

Groups submitting briefs in support of Boseman included Lambda Legal, the Equality North Carolina Foundation, the American Academy of Pediatrics (North Carolina Chapter), the ACLU of North Carolina Legal Foundation, the American Psychological Association, the National Association of Social Workers, and several adoption policy centers.

Of the five justices who voted against the adoption, two hold leadership positions in churches with strong anti-gay views.

Associate Justice Edward Thomas Brady devotes an entire section of his official court biography to “Religious Convictions.” He sits on the Board of Directors of the Baptist State Convention of North Carolina, which in 2006 voted to sever ties with churches that approve of “homosexuality.” The group has also promoted the work of Exodus International, a well known umbrella organization of “ex-gay” groups that claim to offer “freedom from homosexuality through the power of Jesus Christ.”

Brady has also represented his church at the national Southern Baptist Convention (SBC), which believes that homosexuality is “not a ‘valid alternative lifestyle,’” according to its Web site.

Newby, who wrote the majority opinion, is an Elder, Sunday School teacher, and youth leader at Christ Baptist Church (CBC) in Raleigh, according to his court biography. CBC is a member of the SBC and an offshoot of Providence Baptist Church, which lists Beyond Imagination, an Exodus member ministry, among its local ministry partners.

Neither of the dissenting justices lists their religious affiliations in their court biographies.

Minter called the decision “a complete outlier.” Even when second-parent adoptions have been challenged in conservative states, such as Texas, he said, courts have refused to set aside existing adoptions.

In a similar recent case in Minnesota, an appeals court ruled against a woman who was trying to void her former partner’s second-parent adoptions of their twins. The court said the partner had waited too long to challenge the adoptions, but did not rule on her claim that second-parent adoptions are unlawful.

In two other states where second-parent adoption was ruled illegal—Colorado and Connecticut—the legislature then stepped in to allow them. In North Carolina, however, Republicans have taken over the General Assembly and are considering a state constitutional amendment banning same-sex couples from marriage.

“We don’t anticipate any legislation related to adoption to be put forward in the near term,” Palmquist said.

Polikoff noted that conservative groups like the Alliance Defense Fund “are willing to work on any case seeking to undo any parenting by a non-bio mom” but does not believe the attack on second-parent adoptions in North Carolina heralds a trend.

Nevins said that, because Boseman’s custody was upheld, “This won’t be much of a rallying cry.”

And Minter said anti-gay groups are unlikely to succeed with similar suits because “most LGBT parents have too much integrity to attack second-parent adoptions.”

The decision, he said, is “callously oblivious to the impact of its decision on children and families. I don’t think it will have much if any effect outside of the devastation it has wreaked in North Carolina.”

Senate confirms Feldblum for EEOC

The U.S. Senate on Wednesday gave final approval to lesbian law professor Chai Feldblum as President Obama’s nominee to the Equal Employment Opportunity Commission.

Chai Feldblum
Chai Feldblum

The U.S. Senate on Wednesday gave final approval to lesbian law professor Chai Feldblum as President Obama’s nominee to the Equal Employment Opportunity Commission.

Feldblum has been serving on the five-member Commission since April, when President Obama put her onto the commission using a procedure that enables him to circumvent a Senate confirmation vote temporarily—called a recess appointment because it can be done while the Senate is on recess.

But appointees who take their positions via the recess appointment still have to go through the confirmation vote in the Senate. That vote, for Feldblum and three other nominees to the EEOC, has been held up for months by an unidentified Republican senator—or senators—using the Senate rules that enable any senator to put a hold on an appointee’s confirmation vote.

The Senate, on Wednesday night, confirmed the appointments of Feldblum and three other EEOC nominees by unanimous consent, a process by which the Senate can vote on a number of routine matters at once.

Interestingly, one letter in support of Feldblum late in the process, came from the U.S. Chamber of Commerce, the world’s largest federation of businesses. The group has been in the news in recent months for funneling millions of dollars into the mid-term elections, mostly in support of Republican interests.

Randel Johnson, senior vice president of the Chamber, sent a letter to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell December 21, urging the confirmations of Feldblum and two other nominees.

“The Chamber has not, and know that we will not, agree with them on every issue,” wrote Johnson, “but it has been our experience that each is open to hear and consider the concerns of all interested stakeholders.”

Another December 21st letter came from the head of the Society for Human Resource Management, Henry Jackson. Jackson said SHRM had worked with Feldblum on “critical workplace issues such as retirement security and workplace flexibility,” when Feldblum headed Georgetown University Law Center’s Federal Legislation and Administrative Clinic. Jackson said that Feldblum and the other EEOC nominees “have provided a fair hearing to all viewpoints and serve as thoughtful and constructive arbiters of equal opportunity issues in the workplace.”

Numerous right-wing groups voiced opposition to Feldblum shortly after she was nominated last fall. The Traditional Values Coalition called her a “radical,” saying she would “use her power to strip nearly all First Amendment rights of freedom of expression/free exercise of religion from businesses.” Concerned Women for America said she “represents one of the most serious threats to religious freedom we have seen in a long time.” And The Family Research Council said Feldblum “openly admitted to supporting polygamy.”

But, strangely, no opposition surfaced during Feldblum’s public confirmation hearing last November. Instead, numerous pro-civil rights groups, including the Leadership Conference on Civil Rights, lobbied hard for her appointment.

Feldblum is probably best known for her work on the Americans with Disabilities Act (ADA), which passed in 1990, prohibiting discrimination in employment, public accommodations, and other areas against people with disabilities. The law also covered people with HIV infection.

She is best known to the LGBT community as a key counsel on the drafting and negotiations over the Employment Non-Discrimination Act (ENDA). She also served for a time as legislative counsel for the American Civil Liberties Union in Washington, D.C.

Feldblum served for a year as a law clerk to U.S. Supreme Court Justice Harry Blackmun. And, prior to joining the EEOC, she was a professor of law at Georgetown University and as co-director of the university’s Federal Legislation and Administrative Clinic.

The Human Rights Campaign issued a statement December 23 praising the Senate for confirming Feldblum to a full term and noting that, had it not done so, Feldblum’s temporary appointment would have expired in December 2011. Her current appointment term will continue through July 2013.

President signs historic bill to repeal DADT

Following a dramatic and eloquent speech, President Obama Wednesday morning signed the legislation that will launch the repeal of a 17-year-old law that prohibits openly gay people from serving in the military.

President Barack Obama signs the Don't Ask, Don't Tell Repeal Act of 2010 during a ceremony at the Interior Department in Washington, D.C., Dec. 22, 2010. (Official White House Photo by Chuck Kennedy)
President Barack Obama signs the Don't Ask, Don't Tell Repeal Act of 2010 during a ceremony at the Interior Department in Washington, D.C., Dec. 22, 2010. (Official White House Photo by Chuck Kennedy)

Following a dramatic and eloquent speech, President Obama Wednesday morning signed the legislation that will launch the repeal of a 17-year-old law that prohibits openly gay people from serving in the military.

“This is done,” he said, looking up and slapping his hand on the table, and the crowded auditorium of an Interior Department building in Washington, D.C., erupted with cheers and applause.

The historic ceremony took place less than 24 hours after Republican Senate Minority Leader Mitch McConnell took an 11th hour action of trying to make implementation of repeal much more difficult and time-consuming. According to a report on Politico.com, McConnell tried to introduce an amendment to the annual defense authorization bill that would have required that implementation of Don’t Ask, Don’t Tell (DADT) not take place until after the four service chiefs certify that it could be done without negative consequences for military readiness. The DADT repeal legislation requires certification by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff.

According to Politico, McConnell attempted to add the amendment by unanimous consent, but Senator Joe Lieberman (I-Conn.), a champion of the repeal measure, objected. Lieberman’s objection effectively blocked the amendment from being considered without first getting the consent of at least 60 senators.

The president was greeted with a roar of cheers and applause after he was introduced by Vice President Joe Biden at 9:13 Wednesday morning. As the president greeted many special guests on stage with him, the crowded began to chant, “Yes, we can,” a prominent slogan of Obama’s 2008 presidential campaign. When the president reached the podium, he smiled and called back, “Yes, we did.”

“I am just overwhelmed,” said President Obama, beginning his prepared remarks. “This is a very good day, and I want to thank all of you, especially the people on this stage.” He then told a story about a soldier who fought in the Battle of the Bulge in the Belgian mountains against the Germans in World War II. The soldier, Andy Lee, who put his own life in peril in order to scale a ravine and rescue a fellow soldier, Lloyd Corwin. Forty years later, Lee let Corwin know he was gay.

“He had no idea,” said President Obama of Corwin, “and didn’t much care. Lloyd knew what mattered. He knew what kept him alive.”

Obama also told the story of a young female servicemember who gave him a hug on a receiving line in Afghanistan several weeks ago, when the president made a visit to the troops. The woman whispered in his ear, “Get Don’t Ask Don’t Tell done,” said the president. “And I said to her, ‘I promise you I will.’”

With the signing of the bill today, President Obama has also fulfilled a long-standing promise to the LGBT community overall, a feat that is prompting widespread praise, even from gay Republicans.

“He made this a priority,” said R. Clarke Cooper, executive director of the Log Cabin Republicans group. “He was sincere and correct about making this a priority.” (Cooper later revised his remarks to say President Obama made repeal a priority “within the Department of Defense.”) Cooper, a combat veteran serving now as an Army Reserve officer, had a front row seat during Wednesday’s ceremony, said that, as the President shook hands with guests on the front row, following the ceremony, Cooper said to the president, “You said get me those [Republican] votes and I got more than you needed.”

In a critical procedural vote to force the repeal measure to the floor in the Senate on Saturday, six Republicans joined Democrats and Independents to provide more than the 60 votes necessary to break the Republican-led filibuster.

Cooper said the ceremony was a “very emotional” one in the auditorium and that “there were definitely many tears of joy” in his eyes and in the eyes of other former servicemembers discharged under the DADT policy during the past 17 years.

The president acknowledged the tenacious work of numerous individuals during Wednesday’s ceremony, including House Speaker Nancy Pelosi, House Majority Whip Steny Hoyer, Senate Majority Leader Harry Reid, Republican Senator Susan Collins, and the bill’s sponsor Rep. Patrick Murphy. NBC News Washington Bureau Chief Mark Whitaker, speaking on MSNBC shortly before the ceremony, said it was House Majority Whip Hoyer whose idea it was to take DADT repeal language out of the annual defense authorization bill –which was being filibustered by McConnell, Senator John McCain (R-Ariz.), and most Republicans—and put it into a special standalone bill in the House last week.

The House passed that bill on December 15 on a 250 to 175 vote and sent it immediately to the Senate, which approved it December 18 on a 65 to 31 vote.

The president also singled out Rep. Barney Frank (D-Mass.), in the front of the auditorium, for having “kept up the fight” in the House.

Speaking to MSNBC’s Lawrence O’Donnell Tuesday night, Frank characterized the Congressional vote to repeal Don’t Ask, Don’t Tell as being “comparable to the 1964 Civil Rights Act.”

“It is an enormous move forward,” said Frank. Frank said he was moved by a special ceremony held on Capitol Hill Tuesday by House Speaker Pelosi and Majority Whip Hoyer to sign the enrollment document for the bill to be sent to the president. Frank said the hundreds of people in attendance saying “God Bless America.”

“It was a very moving moment,” said Frank.

Also on stage for Wednesday’s ceremony was Joint Chiefs of Staff Chairman Admiral Mike Mullen and Staff Sgt. Eric Alva, an openly gay Marine who was the first servicemember wounded in the Iraq War.

The president used 15 pens to sign the legislation into law. It could not be determined by deadline to whom those pens will be given.

2010: The perfect alignment and the quiet costs

The suspense is over: The U.S. Senate finally took a vote on a bill to repeal the ban on openly gay people in the military and passed it, 65 to 31. Having Congress pass that bill, to repeal Don’t Ask Don’t Tell (DADT), and having that bill signed by the president is an important legislative and political milestone.

It is not the first time the LGBT community has ever succeeded at dismantling a form of institutionalized discrimination. That honor goes to the eradication of laws prohibiting consensual sex between same-sex partners. That was done state by state and, eventually, in the U.S. Supreme Court. The community has, in several states, won the right to obtain marriage licenses the same as straight couples. And, in 2010, it made enormous progress towards marriage equality nationwide through several lawsuits.

President Obama
President Obama

The suspense is over: The U.S. Senate finally took a vote on a bill to repeal the ban on openly gay people in the military and passed it, 65 to 31. Having Congress pass that bill, to repeal Don’t Ask Don’t Tell (DADT), and having that bill signed by the president is an important legislative and political milestone.

It is not the first time the LGBT community has ever succeeded at dismantling a form of institutionalized discrimination. That honor goes to the eradication of laws prohibiting consensual sex between same-sex partners. That was done state by state and, eventually, in the U.S. Supreme Court. The community has, in several states, won the right to obtain marriage licenses the same as straight couples. And, in 2010, it made enormous progress towards marriage equality nationwide through several lawsuits.

But passing the DADT repeal bill in Congress this year was itself a Herculean feat. Partisan hostilities were at an apex, and the Democratic majority was eroding. Two efforts to break a Republican-led filibuster failed. Many in the community voiced impatience and exasperation at the stops and starts in moving legislation. Even more were uneasy with the White House strategy of giving military officials such voice in how and when repeal might happen. And some wondered why repealing the discriminatory policy in the military took precedence over bills that could have benefited even more people. At the end of 2009, after all, the community was hearing that the Employment Non-Discrimination Act (ENDA) would get a vote.

ENDA was blocked, in large part, by deliberations over the landmark—and contentious—health reform legislation. It was also snarled to some extent by preoccupations over bathroom accommodations and wild imagining of bearded kindergarten teachers in dresses. But ultimately, says Mara Keisling, an activist who has pushed hard for ENDA, DADT repeal had more money and more organizational drive behind it, from Servicemembers Legal Defense Network, Servicemembers United, GetEqual, and the Center for American Progress, to name just a few. It got a presidential boost in the form of President Obama’s 2010 State of the Union address. It had a vehicle –the annual defense authorization bill—on which to ride. And it had the fierce advocacy of legislators who just would not give up—Rep. Patrick Murphy (D-Penn.), Senator Joe Lieberman, and many, many others.

At times, it seemed as if the push had turned to shove and the bill would be derailed. So, too, the public’s growing angst over the deep recession emboldened conservatives of every ilk to oppose anything and everything the president and the Democratic Party supported.

But that same public refused to get onboard the gay bashing wagon in the DADT repeal fight. Poll after poll showed growing support for allowing openly gay people serve in the military. A massive survey of active duty personnel and their families found only a few, isolated pockets of trepidation about repealing the ban.

So, passage of a bill to repeal the Clinton-era ban on gays in the military was an event whose time had come, the triumph of a relentless campaign to end discrimination, and the result of a perfect alignment of public opinion, Democratic Party control of Congress and the White House, and LGBT community focus. It was a major political and legislative accomplishment for a community that has long been relegated to second-class citizenship status. It conjures hopes for undoing other institutionalized and formalized discrimination against LGBT people—like the federal Defense of Marriage Act (DOMA). And it may even hobble some elements on the far right that have sought to prosper by peddling hurdles to the mere idea that LGBT people deserve the same respect and rights as other citizens.

But it does not guarantee the ban against openly gay men and lesbians in the military will actually be gone anytime soon. In fact, 2010 will end with the ban still intact.

“Gay, lesbian and bisexual service members posted around the world are standing a little taller today, but they’re still very much at risk because repeal is not final,” said SLDN Executive Director Aubrey Sarvis, in a statement released after the Senate vote. “…Even with this historic vote, service members must continue to serve in silence until repeal is final.”

That’s because the strategy chosen by the Obama White House for ending the policy—while successful thus far and noble in its sensitivity to how difficult “change” is for many people—is akin to soaking a splinter until it falls out. The administration asked that Congress not vote on repeal for nine months while the Pentagon conducted a “study” of how it might best implement repeal “if” Congress repealed it.

Now, after the House sends the bill to the president and he signs it, another waiting period begins. The Department of Defense must develop regulations and conduct “the planning necessary to carry out this change carefully and methodically,” said Gates, following Saturday’s vote.

“The legislation provides that repeal will take effect once the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation of the new policies and regulations written by the Department is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces,” noted Gates. “As I have stated before, I will approach this process deliberately and will make such certification only after careful consultation with the military service chiefs and our combatant commanders and when I am satisfied that those conditions have been met for all the Services, commands and units.

“It is therefore important that our men and women in uniform understand that while today’s historic vote means that this policy will change, the implementation and certification process will take an additional period of time.  In the meantime, the current law and policy will remain in effect.

And then, once certification is submitted, the legislation calls for a third waiting period—a 60-day waiting period between certification and implementation. The language of the bill does not stipulate what, if anything, should take place during this third waiting period, but Senator Robert Byrd (D-WVa.), who passed away in June, reportedly agreed to vote for repeal of DADT only after this waiting period was added. He told reporters at the time that the 60 days would give Congress  “an opportunity to re-examine the concerns of our Armed Forces and the manner in which they are being addressed.”

Thus, the splinter may not be ready to fall out for some time to come, especially since the 60-day review period will take place after Republicans have taken control of the House and increased their numbers in the Senate from 41 to 47.

Could a Republican House attempt to thwart repeal during that 60-day review period?

“Congress could always re-enter the picture, even repeal the repeal,” said longtime legal scholar and activist Nan Hunter, “but there are obviously not the votes for that, even in the next Congress. You might see oversight hearings on the House side, but, even there, I would doubt it, since I think [Republicans] will want to send a message that they are concentrating on curbing spending and other [economic] issues.”

No doubt, President Obama and the Democrats will be concentrating on such issues in 2011, too. The first debate of the 2012 presidential campaign among Republican candidates will take place in the spring of 2001. Given that between 50 and 78 percent of Americans supported the repeal of DADT, it seems unlikely that President Obama’s push to make repeal happen will be of any consequence in his effort to be re-elected. But it is also unlikely that the president—or any other presidential candidate—will be spending much political capital to champion any other gay-related drives toward equality in the near future. Politicians must balance their capital among a wide variety of constituencies—that’s how they get re-elected.

So, for marriage equality, the LGBT community will have to focus on the courts, through such critical legal battles as Ted Olson-David Boies lawsuit against Proposition 8 in California and the Gay & Lesbian Advocates & Defenders lawsuits in Massachusetts and Connecticut. And for protection against discrimination in the workplace, it will to look to the future and another perfect alignment.

Historic Senate vote: Congress repeals 17-year-old ban on gays in military

The U.S. Senate approved a bill Saturday, December 18, to repeal the 17-year-old law banning openly gay people from serving in the military. The roll call vote on the measure, which came to the Senate Wednesday from the House, was 65 to 31.

Harry Reid
Harry Reid

The U.S. Senate approved a bill Saturday, December 18, to repeal the 17-year-old law banning openly gay people from serving in the military. The roll call vote on the measure, which came to the Senate Wednesday from the House, was 65 to 31. It had passed the House 250 to 175. Because both bills are identical, it now moves to the president’s desk for his signature. The White House issued a statement, calling the vote “an historic step toward ending a policy that undermines our national security.”

The Senate vote to repeal the “Don’t Ask, Don’t Tell” (DADT) ban, which came at about 3:20 Saturday, seemed almost anti-climactic. It came three hours after a procedural vote (known as cloture) to send the bill to the Senate floor. The procedural vote was 63 to 33, with one senator not voting.

Two previous motions on cloture—one in September and one last week—had failed. But this time, six moderate Republicans voted for sending the bill to the floor and for repeal: Senators Scott Brown of Massachusetts, Susan Collins and Olympia Snowe of Maine, Mark Kirk of Illinois, Lisa Murkowski of Alaska, and George Voinovich of Ohio. On previous cloture votes, they had stood by a Republican Party demand that the Senate not consider “any legislative item until the Senate has acted to fund the government and we have prevented the tax increase….” Both the House and Senate passed a Republican-sought tax cut extension earlier in the week have passed a continuing resolution to fund the government until final appropriations bills can be approved.

Aubrey Sarvis, head of Servicemembers Legal Defense Network, issued a statement immediately after the cloture motion passed, praising the vote and asking that Defense Secretary Robert Gates “use his authority to suspend” the ban until such time as the repeal can be certified and implemented, as called for in the legislation.

The first of two votes on DADT repeal came after more than an hour of vigorous and sometimes emotional debate Saturday morning. Democrats urged their colleagues to “do the right thing” and repeal the policy, and Republicans chided Democrats for not allowing for any amendments and bringing up the issue at a bad time.

Senator Ron Wyden (D-Ore.) went to the Senate floor around 9:30 Saturday morning, acknowledging that his ability to vote had received a lot of attention in the previous 48 hours because he is scheduled to have prostate surgery on Monday. Some political observers had speculated Wyden might not be available for the repeal vote, if it was postponed until Monday.

Wyden spoke strongly for repeal of DADT, saying it was forcing the military to turn away and discharge many experts in such crucial languages as Arabic, Farsi, and Chinese. But more importantly, said Wyden, the ban is “wrong” and “never should have been perpetuated” against gay servicemembers in the first place.

Senator Mark Udall (D-Colo.) spoke in favor of ending the policy and quoted the words of a letter published December 16 in the Washington Post by an active duty infantry Marine Corps captain, Nathan Cox. Cox said he is not gay but that, in his experience, “the things that separate Marines in civilian life fade into obscurity on the battlefield.”

“There, only one thing matters,” wrote Cox. “Can you do your job?”

“It is time for ‘don’t ask, don’t tell’ to join our other mistakes in the dog-eared chapters of history textbooks,” read Senator Udall from the letter. “We all bleed red, we all love our country, we are all Marines. In the end, that’s all that matters.”

Senator Dianne Feinstein (D-San Francisco) said the policy is unconstitutional and “does more harm than good.”

Senator John McCain (R-Ariz.), who led the filibuster against repeal of DADT, claimed repeal would cause harm, and he repeatedly suggested it would lead to more soldiers losing limbs and lives.

“This debate is not about the broader social issues that are being discussed in our society,” said McCain, “but what is in the best interest in our national security and our military during a time of war.”

The primary objections of Republicans were about timing and their inability to amend the bill.

Democrats “know they can’t get [passage] next January 5 … that’s why they’re jamming this through now,” said McCain, referring to the fact that Republicans last month won a majority in the House and an increased number of Republicans in the Senate.

McCain also said he filed two amendments to the DADT repeal bill but that, because Senate Majority Leader Harry Reid had closed out any amendments beyond those he wished to consider, McCain’s amendments could not be heard.

Senate Minority Leader Mitch McConnell also criticized Reid’s blocking of amendments, even while acknowledging that, years ago, it was Democrats who were criticizing Republicans for doing the same thing.

McConnell said “liberal interest groups have more influence over military personnel policy than the senior enlisted leaders of the Army and Marine Corps.” He said he wanted to amend the bill to enable service chiefs to participate in the bill’s certification process.

The process for implementation of repeal calls for the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff to certify the repeal can be implemented without harming military readiness. After that, there is a 60-day waiting period during which time Congress could presumably “review” the implementation plan. Legal scholar Nan Hunter said the 60-day period is essentially “just a countdown” period, though “Congress could always re-enter the picture.” But Hunter noted that an effort to undo repeal “obviously” does not have the votes.

Reid, reacting to McConnell’s complaints, smiled and shook his head, and reminded listeners that the Senate has been “stymied, stopped, and stunned by the procedural roadblocks of this Republican minority.”

But McCain essentially conceded defeat during his remarks, saying he believed repeal would pass Saturday and that “there will be high fives all over the liberal bastions around the country.

“But don’t think it won’t be at great cost,” said McCain. “….We are doing great damage.”

Senator Saxby Chambliss (R-Georgia) said it’s “a given” that gays and lesbians serve admirably in the military, but he said allowing them to serve openly now “has the potential for increasing the risk of harm and death to our men and women who are serving in combat today.”

“Should it be done at some point in time?” asked Chambliss. “Maybe so. But in the middle of a military conflict is not the time to do it.”

Senator Lindsey Graham (R-SC) seemed uncomfortable with the couching of repeal in terms of civil rights.

“Some will say this is a civil rights issue of our time, the day has come, we need to move forward as a nation,” said Graham. “The Marine Corps does not have that view.”

Graham, and others, accused Democrats as simply playing politics with both DADT repeal and the DREAM immigration act, trying to pacify specific constituencies.

Senator Dick Durbin (D-Ill.), the majority whip of the Senate, said, referring to both the DREAM Act vote and the DADT repeal bill, “This is our moment in history to show our courage.”

And Senator Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee, rejected claims that the repeal has come as a political ploy to court gay votes.

“Some have argued that this is social engineering, or this is partisan, even though this change is supported by the overwhelming majorities of the American people. They are grossly mistaken,” said Levin. He reminded the Senate that the first ground-unit casualty of the Iraq war, Staff Sergeant Eric Alva, lost his right leg from a land mine. Captain Jonathan Hopkins, he said, earned three Bronze Stars, “including one for valor in combat.” And yet both were discharged under the DADT policy, said Levin.

“We cannot let these patriots down,” said Levin. “Their suffering should end. It will end with the passage of this bill.”

In his statement, President Obama said he is “absolutely convinced” that repeal will “underscore the professionalism of our troops as the best led and best trained fighting force the world has ever known.”

In a bit of historic irony, the procedural vote was the same as in 1993, when Senator Barbara Boxer (D-California) sought to head off passage of the Don’t Ask, Don’t Tell ban by offering an amendment to delete it from the defense authorization bill to which it had been attached. Boxer’s amendment failed 33 to 63.

Senators who did not vote on the procedural roll call Saturday were Democrat Joe Manchin of West Virginia and three Republicans: Jim Bunning of Kentucky, Judd Gregg of New Hampshire, and Orrin Hatch of Utah. With four senators not voting, the motion would have passed with only 58 votes.

Reid schedules DADT repeal cloture vote for Saturday

U.S. Senate Majority Leader Harry Reid announced Thursday night that he was filing a motion to seek a vote Saturday to send the House’s “Don’t Ask Don’t Tell” repeal bill to the floor.

Meanwhile, Servicemembers Legal Defense Network (SLDN) announced Thursday night that they will have service members sitting in the public gallery in the Senate chamber until the repeal bill is voted on.

U.S. Senate Majority Leader Harry Reid announced Thursday night that he was filing a motion to seek a vote Saturday to send the House’s “Don’t Ask Don’t Tell” repeal bill to the floor.

Meanwhile, Servicemembers Legal Defense Network (SLDN) announced Thursday night that they will have service members sitting in the public gallery in the Senate chamber until the repeal bill is voted on.

Senator Joe Lieberman (I-Conn.) said this week that DADT repeal has 61 votes in the Senate, but he has not indicated how many votes stand ready to vote for cloture. Cloture is the motion that enables a bill to go to the Senate floor despite objections of one or more senators. Such motions, however, require 60 votes and senators will sometimes vote against cloture even though they profess support for the legislation. That was the case in September when Republican Senator Susan Collins (R-Maine) voted for DADT repeal in a Senate committee but voted against cloture to send the defense spending bill to the floor.

Last week, Collins broke with her Republican colleagues and voted for cloture to bring the defense bill to the floor, but the vote still amounted to only 57—three votes short of 60. None of the 40 senators voting against cloture last week (which includes West Virginia Democrat Joe Manchin) have yet announced their intention to vote yes for cloture on Saturday. The three senators who did not vote include two Republicans—Sam Brownback of Kansas and John Cornyn of Texas—as well as Blanche Lincoln of Arkansas. Lincoln arrived on the floor too late to vote but said she would have voted for cloture. So supporters of moving DADT repeal to the floor for a vote on merits amount to at least 58. One question mark is whether long-time gay civil rights supporter Ron Wyden of Oregon, who is scheduled for surgery on Monday, will be on the floor for a vote Saturday.

Many press reports have focused on Massachusetts Republican Senator Scott Brown after his spokesperson told ABC News, “Sen. Brown accepts the Pentagon’s recommendation to repeal the policy after proper preparations have been completed. If and when a clean repeal bill comes up for a vote, he will support it.” She did not make clear whether Brown would vote to bring such a bill to the floor and Brown is one of 42 Republicans who signed onto the December 1 letter saying they would not allow any legislation to the floor until “until the Senate has acted to fund the government and we have prevented the tax increase….”

It appears the Senate has acted to prevent the tax increase, but Reid pulled an omnibus funding bill from the floor Thursday after Republican Senator Jim DeMint demanded that the entire bill—nearly 2,000 pages long—be read out loud on the floor before the vote. Estimates were that such a read could take more than two full days and nights.

“We’re trying to run out the clock…until the reinforcements get here in January,” said DeMint, in an interview with Fox News on Wednesday.

But Rep. Barney Frank (D-Mass.) told MSNBC’s Keith Olberman Thursday night he thinks there’s a good chance for the DADT repeal bill to get its vote Saturday.

“We are overwhelmingly likely now to see the end of this terrible discrimination,” said Frank. He also predicted President Obama would drop his defense of the law in the courts if Republicans were able to continue filibustering against the repeal.

Senator Carl Levin (D-Mich.) and Senator John McCain (R-Ariz.), the ranking party leaders on the Senate Armed Services Committee announced Thursday that they had agreed to “drop many controversial provisions that were included in the House and Senate versions of the bill” and “move quickly” to a vote on the Defense Authorization bill. The press release did not state it, but a staffer for Levin confirmed that the DADT repeal language was one of the “controversial provisions” dropped by Levin and McCain.

House clears DADT repeal measure

The U.S. House of Representatives voted Wednesday afternoon to approve a measure to repeal Don’t Ask, Don’t Tell, the second time this year the House approved such a measure.

Patrick Murphy
Patrick Murphy

The U.S. House of Representatives voted Wednesday afternoon to approve a measure to repeal Don’t Ask, Don’t Tell. The vote was 250 to 175. It was the second time this year the House approved such a measure. In May, the vote was 232 to 180.

The measure will now go to the Senate where it is expected to reach the floor sometime next week.

The vote may have confused someone just tuning in to the debate because it appeared, on the surface, to be a debate about a small business bill. But that bill, which has been approved by both houses but not sent to conference, was gutted and language from a Don’t Ask Don’t Tell (DADT) repeal bill was inserted. This new language was introduced by U.S. Rep. Patrick Murphy as a standalone repeal bill Tuesday, as a way of encouraging and speeding up the passage of a similar standalone bill in the Senate.

House Speaker Nancy Pelosi (D-San Francisco) took to the floor early in the debate to urge passage of the measure and cite polling data released Wednesday showing 8 out of 10 Americans support repeal.

“It is my hope to encourage the Senate to take this long overdue action,” said Pelosi.

Rep. Murphy (D-Pennsylvania), urging support for repeal, said,  “Enough of the games. Enough of the politics… . This vote is about whether we’re going to continue telling people willing to die for our freedoms that they need to lie in order to do so.”

Rep. Susan Davis (D-San Diego) controlled debate for Democrats and led with remarks saying, “the time to act is here.” Davis is a member of the House Armed Services Committee.

“Change is never easy but it rarely is as necessary as it is today,” said Davis. “…If we miss this opportunity to repeal this law, history will judge us poorly.”

Republican Rep. Buck McKeon (R-San Bernardino), who will be the chairman of the House Armed Services Committee beginning in January, expressed “strong opposition” to the repeal measure. He lamented the committee was not being given an opportunity to hold its own hearing on the December 1 report submitted by the Pentagon. The Senate Armed Services Committee held such a hearing on December 2 and 3.

Rep. Trent Franks (R-Arizona) urged voting against the repeal measure to provide the military with more time to “deal with this in their own way.”

Many of the Republicans who spoke lamented the fact that Congress has yet to pass the annual Defense Authorization bill, suggesting that debating the DADT repeal was somehow interfering with that bill. The irony, of course, was that Republicans in the Senate blocked consideration of the Defense Authorization bill, in large part because it included DADT repeal.

Rep. Barney Frank (D-Mass.) called Republicans on that, saying Republicans had repeatedly blocked consideration of the defense bill. He also argued that it’s not servicemembers who are uneasy with the change, but Republican members of Congress.

Rep. Tammy Baldwin (D-Wisc.) also spoke in favor of repeal, saying the current policy is un-American.

Rep. Louie Gohmert (R-Texas) opposed repeal, saying “the military is inconsistent with American values” because members do not have freedom of speech, “because it’s an impediment to the military mission.” But Rep. Silvestre Reyes (D-El Paso, Texas) urged support for repeal, saying servicemembers in his district reflected the results of the Pentagon study that found most anticipate no problems with repeal. And Rep. Al Green (D-Texas), an African American, said, “I don’t need a survey to tell me what’s right when it comes to human rights.”

“We cannot have a first-class military with second-class soldiers,” said Green. “I will not ask people who are willing to die for my country to lie for my country.”

Rep. Mike Pence (R-Ind.), who is said to be considering a presidential run, opposed repeal, saying it was not about discomfort with homosexuality but a significant percent of servicemembers surveyed by the Pentagon suggested would have difficulty with the repeal.

The Senate last week fell just three votes short of moving to consideration of the issue through the Defense Authorization bill, which includes repeal language. If the House passes its new standalone bill Wednesday and Senate Majority Leader Harry Reid attempts to bring it to the floor of the Senate in the next few days, it will still need 60 votes to reach the floor.

West Virginia activists and the Servicemembers Legal Defense Network (SLDN) delivered 800 petitions to the offices of West Virginia’s new Democratic Senator, Joe Manchin, on Wednesday, hoping to reverse his recent vote against consideration of DADT repeal. Manchin, the only Democrat to vote with Republicans to keep a filibuster going last week, said he voted no because he hadn’t had enough time to review the issue.

Senator Blanche Lincoln (D-Ark.) said last week she would have voted for cloture on the defense bill had she been in the chamber during the vote. And Senator Scott Brown (R-Mass.) has said he would vote for cloture after the Senate completes passage of a bill to extend tax cuts.

The Senate on Wednesday passed the tax cut extension bill and then moved immediately to consideration of a new arms control treaty (START). Some are predicting the House will soon pass the tax cut bill, too, fulfilling a Republican Party demand that has prevented consideration of DADT repeal and other issues.

So, presumably, the bill to repeal Don’t Ask, Don’t Tell (DADT) would need only one more Republican vote on cloture and a simple majority to pass on its merits. Democratic leaders have said repeal of DADT has had more than enough support for that for months now.

One troubling development for repeal—though not one that is expected to deliver much punch—was a statement Tuesday from U.S. Marine Corps Commandant James Amos. Amos told reporters at a Pentagon briefing that he thinks repeal threatens the lives of Marines in combat because a soldier’s being gay presents a “distraction” to Marines and “distractions cost Marines’ lives.”

“I don’t want to lose any Marines to distraction,” said Amos. “I don’t want to have any Marines that I’m visiting at Bethesda [Army Hospital] with no legs.”

Just minutes before the House began debate on the DADT repeal, the White House issued a statement, saying the Obama administration “strongly supports” its passage.

House to vote Wednesday on DADT repeal

The U.S. House of Representatives will vote Wednesday on a standalone bill, introduced Tuesday, seeking repeal of Don’t Ask, Don’t Tell.

U.S. Rep. Patrick Murphy introduced the bill Tuesday as a way of encouraging and speeding up the passage of a similar standalone bill in the Senate.

The U.S. House of Representatives will vote Wednesday on a standalone bill, introduced Tuesday, seeking repeal of Don’t Ask, Don’t Tell.

U.S. Rep. Patrick Murphy introduced the bill Tuesday as a way of encouraging and speeding up the passage of a similar standalone bill in the Senate.

The Senate last week fell just three votes short of moving to consideration of the issue through the Defense Authorization bill, which includes repeal language. And if the House passes this bill Wednesday and Senate Majority Leader Harry Reid attempts to bring it to the floor of the Senate in the next few days, it will still need 60 votes to reach the floor.

But Senator Blanche Lincoln (D-Ark.) said last week she would have voted for cloture on the defense bill had she been in the chamber during the vote. And Senator Scott Brown (R-Mass.) has said he would vote for cloture after the Senate completes passage of a bill to extend tax cuts.

The Senate is expected to pass the tax cut extension bill Tuesday evening, and many predict it will also pass the House soon thereafter.

So, the bill to repeal Don’t Ask, Don’t Tell (DADT) would need only one more Republican vote on cloture and a simple majority to pass on its merits. Democratic leaders have said repeal of DADT has had more than enough support for that for months now.

One troubling development for repeal—though not one that is expected to deliver much punch—was a statement Tuesday from U.S. Marine Corps Commandant James Amos. Amos told reporters at a Pentagon briefing that he thinks repeal threatens the lives of Marines in combat because a soldier’s being gay presents a “distraction” to Marines and “distractions cost Marines’ lives.”

“I don’t want to lose any Marines to distraction,” said Amos. “I don’t want to have any Marines that I’m visiting at Bethesda [Army Hospital] with no legs.”

LGBT housing bill faces long odds

Three weeks before the end of a session of Congress may seem an odd time to introduce any new bills, much less one dealing with always-contentious LGBT civil rights. But three representatives introduced a bill 12/8 that would better protect LGBT people from discrimination in housing.

Jerrold Nadler
Jerrold Nadler

Three weeks before the end of a session of Congress may seem an odd time to introduce any new bills, much less one dealing with always-contentious LGBT civil rights. But three representatives introduced a bill on December 8 that would better protect LGBT people from discrimination in housing.

The Housing Opportunities Made Equal (HOME) Act, introduced by Reps. Jerrold Nadler (D-N.Y.), John Conyers (D-Mich.), and Edolphus Towns (D-N.Y.), would amend the Fair Housing Act (FHA) to prohibit discrimination on the basis of sexual orientation, gender identity, source of income, or marital status in the sale, rental, financing, or brokerage of housing. It would also expand the FHA’s definition of “familial status” to include “anyone standing in loco parentis” to a minor—thus providing protection to same-sex couples and other families where one parent may not be legally recognized.

With LGBT legislative efforts focused on a repeal of the military’s “Don’t Ask, Don’t Tell” policy at the moment, however, there is unlikely to be any action on the new bill before the current session of Congress ends at the turn of the year. It will need to be reintroduced next session.

A spokesperson for Rep. Nadler, Ilan Kayatsky, said in an interview that little should be read into the timing of the introduction, other than that it was the culmination of a hearing process that began earlier in the current session.

“It’s really about building momentum,” he said. “We’re in it for the long haul.”

Nadler has held three subcommittee hearings this year to examine various ways in which the FHA could be improved, including one in March that addressed housing discrimination against LGBT people. The National Gay and Lesbian Task Force’s executive director, Rea Carey, was among the witnesses, and Joe Solmonese, president of the Human Rights Campaign (HRC), submitted written testimony.

The HOME bill replaces three similar but separate bills introduced by Reps. Nadler, Towns, and Joe Sestak (D-Penn.) earlier in the session. All three bills had been referred to the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, which Nadler chairs and of which Towns is a member. Judiciary Committee Chair Conyers had been a co-sponsor of Nadler’s original bill. Sestak, however, lost his reelection campaign this past November.

The original FHA was enacted in 1968 in response to widespread housing discrimination against people of color. It prohibited discrimination based on race, color, religion, and national origin, and was later amended to include sex, disability, and familial status. Individuals seeking redress under the FHA may bring a lawsuit in federal district court or file an administrative complaint with the U.S. Department of Housing and Urban Development (HUD).

Twenty states plus the District of Columbia have additional housing protections based on sexual orientation, and 13 states plus the District have protections based on gender identity. Approximately 60 cities, towns, and counties have LGBT protections as well. There are no explicit federal protections.

But with Rep. Nadler losing the chair of his subcommittee next session because of the Republican majority, the new bill’s fate remains unclear.

Stacey Long, federal legislative director for the Task Force, said, “We will spend the next couple of years continuing to lobby around the legislation. Even though Congress is not likely to move on it, we will continue to use it as an education tool.”

Michael Cole-Schwartz, a spokesperson for the Human Rights Campaign, said that introducing the bill now “helps to jump start the conversation, to keep it in people’s minds.” An introduced bill, Cole-Schwartz explained, “gives a substantive nature to the lobbying and education that need to happen.”

HRC, the National Gay and Lesbian Task Force, and the Family Equality Council have been working on the bill as members of the Leadership Conference on Civil Rights, a coalition that includes various progressive communities involved with fair housing issues. Long said she was pleased many non-LGBT organizations have given their support to the HOME bill. They include the American Civil Liberties Union, the NAACP, National Consumer Law Center, the National Council of La Raza (the nation’s largest Latino rights organization), the National Fair Housing Alliance, and the National Urban League.

No national study has quantified how many LGBT people have faced housing discrimination, but at the March hearing, Carey cited small studies, court cases, and individual examples that paint a troubling picture of pervasive discrimination, especially against transgender people and LGBT seniors.

HUD is in the midst of preparing a national study to gain a better understanding of the extent and impact of anti-LGBT housing discrimination. The agency is designing it now, after collecting input earlier this year from a national listening tour and online submissions. A HUD spokesperson said the target date for reporting findings is late 2012.

Despite the lack of explicit federal protections, HUD on July 1 announced a clarification of existing policy, stating that although the FHA does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover them in other ways. For example, gender-identity discrimination may be seen as gender discrimination.

The HUD guidance also instructs staff to inform individuals about state and local LGBT protections that may apply to them. And HUD requires its grant applicants to comply with such state and local laws, when they exist.

Third DADT lawsuit filed; SLDN threatens more

Activists pushing for repeal of Don’t Ask Don’t Tell delivered on a threat Monday and filed a third lawsuit aimed at having the courts strike the military’s ban on openly gay people.

Aubrey Sarvis
Aubrey Sarvis

Activists pushing for repeal of Don’t Ask Don’t Tell delivered on a threat Monday and filed a third lawsuit aimed at having the courts strike the military’s ban on openly gay people.

The lawsuits represent what Defense Secretary Robert Gates and the nation’s top military leaders say they fear the most: that the courts will find the military’s ban on openly gay people unconstitutional. And such a ruling, they fear, will provoke an order to stop enforcing that ban—immediately.

It has happened. Just last September, a federal district court judge in Riverside, California, ruled in Log Cabin Republicans v. U.S. that the Don’t Ask Don’t Tell (DADT) law was unconstitutional. Two weeks later, another district court judge made a similar ruling in Witt v. U.S. Then, in October, the judge in Log Cabin issued an order that the military to stop its enforcement of DADT, globally and immediately. Secretary Gates said at a Senate hearing earlier this month that the court rulings, the injunction against enforcement of DADT, and a subsequent stay of that injunction created several weeks of enormous confusion and distraction for military leaders, wrestling with how to enforce the law and court rulings. He urged the Senate to pass the repeal measure, saying, “I worry that unpredictable actions in the court could strike down the law at any time, precluding the orderly implementation plan we believe is necessary to mitigate risk.”

But the Senate has twice now refused to break a Republican-led filibuster that is currently blocking consideration of the repeal measure. The repeal language is part of an annual defense authorization bill, and 42 Republican senators signed onto a letter saying they would not consider any bill until Congress passes a Republican-favored measure extending tax cuts, including to very wealthy Americans.

Both Log Cabin and Witt are on appeal in the 9th Circuit U.S. Court of Appeals. And Monday, lawyers for Servicemembers Legal Defense Network filed a third lawsuit—in that same circuit.

This week’s lawsuit is pending now in federal district court in San Francisco and, like the other lawsuits, seeks a declaration that DADT is unconstitutional. It also seeks reinstatement for three servicemembers who were discharged under the law.

SLDN warned prior to last week’s failed vote on the filibuster that it would begin filing lawsuits to step up efforts to repeal the law, should Congress fail to.

“This filing is a shot across the bow as we prepare to pursue and sustain an aggressive far reaching litigation strategy if the Senate fails to act this month to repeal the law,” said Aubrey Sarvis, head of SLDN. “This dispute can be resolved by Congress or by the courts. With this filing we put Congress on notice that a cadre of service members and our national legal team stand ready to litigate strategically around the country.

SLDN says it is preparing to file additional lawsuits, too.

“Another suit we’re working on involves clients discharged under ‘Don’t Ask’ who want to enter the reserves or a guard unit, and we plan to file such cases early next year if Congress fails to act. Clearly there is an urgent need for the Senate to act on legislation this week.”

The lawsuit filed Monday is Almy v. U.S. The lead plaintiff is Michael Almy whose discharge has been of particular focus because his discharge was initiated after military personnel searched the files of a computer Almy was allowed to use for personal emails while he was in Iraq. (Use of personal computers was not allowed, for security purposes.) Almy’s commander confronted Almy with an email exchange with a male friend discussing same-sex conduct and “pressured him to acknowledge he is gay,” says the lawsuit. Almy’s experience is seen as important to establishing that not all servicemembers discharged under DADT initiate the discharge proceedings themselves by volunteering that they are gay.

Almy is a resident of Washington, D.C. and served as a communications officer in the U.S. Air Force for 13 years, including four tours to the Middle East, before being discharged, at the rank of major, in 2006.

Anthony Loverde is a resident of San Francisco and served seven years as a C-130 technician. Loverde took the initiative to inform his superior officers that he was gay because “he could no longer continue pretending to be someone he was not.” Loverde made clear he would like to continue serving but was discharged in 2008 at the rank of staff sergeant.

And Jason Knight is a resident of California and served five years as a linguist before being discharged in 2005 at the rank of petty officer second class in the Navy. Knight’s sexual orientation became known after he provided copies of documents relating to the annulment of his marriage to his commander, along with a statement explaining that he is gay. But in Knight’s case, the Navy called him back into active duty in 2006 in Kuwait as a Hebrew linguist then discharged a second time under the policy in 2007.

Like the other lawsuits, Almy v. U.S. contends that DADT violates the servicemembers constitutional rights to due process, equal protection, and the First Amendment rights to freedom of speech and association.

The Senate is expected to take several votes this week related to the tax cut extension measure, but it is uncertain whether it will reach consideration of a new standalone bill seeking repeal of DADT. That standalone bill was introduced following the failed vote to break the filibuster on the defense spending bill last week.

Senate fails to bring DADT repeal to the floor

Thu. Dec. 9 – 4:10 p.m.—The Senate has just rejected an attempt to bring the defense authorization bill to the floor, effectively killing the prospects for repealing Don’t Ask, Don’t Tell this year, and likely for years to come. The vote was 57 to 40.

Harry Reid
Harry Reid

The Senate Thursday afternoon failed to garner enough votes to bring the defense authorization bill to the floor, potentially killing the prospects for repealing Don’t Ask, Don’t Tell this year, and perhaps for years to come. The vote was 57 to 40.

But, just minutes after the vote, Senator Joe Lieberman (I-Conn.) sent out a tweet saying he and Republican Senator Susan Collins of Maine are immediately introducing a free-standing bill to repeal Don’t Ask, Don’t Tell and that Senate Majority Leader Harry Reid has agreed to bring it to the floor in the lame-duck session.

It was a dramatic finish and, undoubtedly, viewers saw on the Senate floor just the tip of the iceberg in negotiations that sought to bring about repeal of the military’s ban on openly gay servicemembers.

Senate Majority Leader Harry Reid took to the floor at about 3 o’clock, saying he had had tried “every possible way to move forward” on the defense authorization bill, which contains language to repeal Don’t Ask, Don’t Tell. But in the end, said Reid, Republicans were clearly bent on killing the repeal.

“I’ve bent over backwards, but it’s clear that Republicans…don’t want to have a vote on [Don’t Ask, Don’t Tell],” said Reid, “and they’re doing whatever they can to stand in the way of this bill.”

But Collins, who has been the considered a deal-maker for Republicans on the measure, rush to the floor following Reid’s remarks and suggested she was baffled at Reid’s decision to call for reconsideration of last September’s failed vote to break the Republican-led filibuster on the measure.

“I want to vote to proceed to this bill,” said Collins, saying it was a “vitally important bill.”

“I just do not understand why we can’t proceed along a path that will bring us to success and allow us to get the 60 votes to proceed,” she said. “I’m willing to be one of those votes. I thought we were extremely close.”

Reid complimented Collins for her efforts and said she was not the problem. The problem, he said, was the GOP’s announced determination to obstruct consideration of any legislation until Congress passed a Republican-backed tax cut extension.

The final vote was 57 to 40.

Senator Blanche Lincoln (D-Ark.) said she would have voted “yes,” but missed the deadline for voting; it could not be determined immediately which other two senators did not vote. Most moderate Republicans, including Massachusetts’ Scott Brown, Illinois’ Mark Kirk, and Maine Senator Olympia Snowe, voted against allowing the bill to the floor. Republican Senator Susan Collins, who was a chief negotiator for trying to get the bill to the floor, voted for cloture.

Gay groups working for passage of the DADT repeal measure were deeply disappointed.

Aubrey Sarvis, head of the Servicemembers Legal Defense Network (SLDN), called it an outrage and urged the Senate to stay in session “to find another path for repeal to get done in the lame-duck.”

“While difficult,” acknowledged Sarvis, “realistic options still exist for advocates and Senators to move repeal this year.” It’s not clear what those options are. Most observers have made clear that if the Senate rejected the motion to send the Defense bill to the floor, the repeal of DADT was effectively dead for this Congressional session. The next Congressional session includes a Congressional make-up that provides very few prospects for passage of the legislation.

DADT suspense continues: maybe tomorrow

All the focus was on Maine Republican Senator Susan Collins Wednesday, with the question being whether she could be persuaded to vote to end the Republican-led filibuster against the defense authorization bill.

Susan Collins
Susan Collins

All the focus was on Maine Republican Senator Susan Collins Wednesday, with the question being whether she could be persuaded to vote to end the Republican-led filibuster against the defense authorization bill.

But that focus seemed at least somewhat misplaced. The latest discernible vote-count on the Defense cloture vote suggests Democrats have only 56 of the 60 votes they need to move to the bill and begin consideration of the language to repeal Don’t Ask Don’t Tell.

The cloture vote had 57 votes in September (including that of Reid, who switched to “No” at the last minute only to retain the right to bring the vote up again for reconsideration). One “No” vote—Arkansas Democrat Mark Pryor—has agreed to vote for cloture. But two “Yes” votes have since been replaced, during mid-term special elections, with two senators whose positions are not known on cloture—Illinois Republican Mark Kirk and West Virginia Democrat Joe Manchin.

Several moderate Republicans have publicly confirmed they are ready to vote for repeal of DADT –including Massachusetts Senator Scott Brown and Alaska Senator Lisa Murkowski. But so far, none have indicated they are ready to cross the Republican party line drawn stark by a December 1 letter to Reid. In that letter, all 42 Republican senators said they would not vote to proceed on consideration of “any legislative item until the Senate has acted to fund the government and we have prevented the tax increase….”

What has changed since then is President Obama’s controversial announcement this week that he has agreed to the Republicans’ key demands on extending tax cuts. Many Democrats are expressing considerable anger at that agreement, saying it gives Republicans more than it gains for Democrats and that it threatens to escalate an already dangerous deficit.

What is unknown still, however, is whether any Republicans would be willing to vote for cloture on the defense spending bill without first gaining House and Senate approval of the agreement Republicans struck with President Obama.

Collins reiterated Wednesday that “Everyone on the Republican side wants to see the tax package completed first,” according to NBC News, and that she urged Reid to “postpone” the defense vote until after the tax bill is considered. But she suggested that plan might lead to the 60 votes for the defense bill.

Washington Post columnist Jonathan Capehart also reported Wednesday afternoon that Collins told him she would consider voting for cloture on the defense bill if Reid offered to let Republicans introduce 10 amendments and have at least two hours debate on each.

Collins, Brown, Murkowski, and several other moderate Republicans who are considered potential votes for cloture on the defense bill, all voted with Republicans today on two other cloture votes—one related to unions and another for senior citizens. The votes failed 55 to 43 and 53 to 45.

Reid announced Wednesday at around 7 p.m. that the Senate would consider two more cloture votes beginning around 11 a.m. Thursday and then, if those fail, proceed to a cloture vote on the Defense Authorization bill.

Prop 8 arguments: Feisty questions on standing and merits for both sides

SAN FRANCISCO — Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel Monday that the reason proponents of Proposition 8 have proffered to justify their ban on same-sex marriage is “nonsense.”

Ted Olson
Ted Olson

SAN FRANCISCO—Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel Monday that the reason proponents of Proposition 8 have proffered to justify their ban on same-sex marriage is “nonsense.”

That reason, said Olson, reading from a page in the argument brief filed by attorneys for the Yes on 8 coalition which promoted passage of California’s ban on same-sex marriage, was that same-sex marriage “will make children prematurely preoccupied with issues of sexuality.”

“If believed,” said Olson, “that would justify the banning of comic books, television, video games, and even conversations between children.”

And that was not exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, noted Olson, was “protecting children” from the notion that marriage between same-sex couples was ok.

So, what should the court consider as the reason behind denying same-sex couples the right to marry, asked Judge Michael Hawkins.

“Should we look just at the record in the district court,” he asked, or should we “imagine whether there is any conceivable rational basis” to ban gays from marriage?

Olson urged the court not to use its own imagination to figure out whether there might be any conceivable rational reason but to look at the reasons proffered by the Yes on 8 proponents and to determine whether they “make sense” and whether they are “motivated by fear” or a dislike of gay people.

“Protecting our children,” said Olson, “is not a rational basis. It’s based on the idea there’s something wrong with” gay people.

Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday’s argument before the federal appeals court than they did in January and June before U.S. District Court Judge Vaughn Walker. It was Walker’s ruling in August –that California’s ban on same-sex marriage violated the U.S. Constitution—that brought them to the appeals court in San Francisco December 6. Unlike at the district court trial, where the U.S. Supreme Court forbid any television or web broadcast, the appeals proceedings were carried live on national television by CSPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.

Any pre-courtroom second-guessing that observers may have harbored over the political leanings of the three judges seemed to be put to rest fairly quickly, as the judges vigorously challenged each side’s arguments on both matters before the court—Yes on 8 and Imperial County’s legal qualification (standing) to appeal and the validity of Walker’s declaration that Proposition 8 violates the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution.

Judge N. Randy Smith, an alum of the Mormon-run Brigham Young University, came out swinging hard questions for Cooper over Yes on 8’s claim to have legal standing to press the appeal. Then he pitched equally hard questions to Olson’s comrade David Boies, about the “problem” created for the court by the fact that neither the state’s governor nor attorney general appealed the district court decision themselves. Even though neither has the power to veto an initiative, said Smith, they both nullified the initiative by not appealing it.

Boies tried to make the point that Governor Arnold Schwarzenegger and Attorney General Jerry Brown made their decisions not to appeal after Judge Walker declared the initiative to be unconstitutional.

Judge Stephen Reinhardt, widely perceived to be a staunch liberal, seemed to agree with Smith, saying the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. And should the court find that Yes on 8 and Imperial County both lack the legal qualifications to appeal, the judges said, the appeals court has no cause to rule on the merits of the dispute.

Boies argued that the concern about what the governor and attorney general did was a “different issue” than standing. And on the issue of standing, said Boies, Yes on 8 and Imperial County have no standing to bring the appeal, simply because they can’t meet the standard of demonstrating a real injury from the decision below.

It was not an easy sell. Hawkins expressed frustration that the court might not be able to render a decision on the merits “so it’s clear, in California, who has the right to marry and who doesn’t.”

Yes on 8 attorney Charles Cooper had argued that, because the California Supreme Court had, in an earlier, related court proceeding given Yes on 8 the right to intervene in the Perry v. Schwarzenegger case to defend Proposition 8, it intended to convey standing, too. By the end of the first hour of the proceeding—which was devoted to standing—the panel seemed inclined to ask the California Supreme Court to certify whether it intended Yes on 8 to have standing.

The panel seemed equally uncomfortable with the effort by a deputy clerk of Imperial County, Isabella Vargas, to seek standing to appeal Walker’s decision. The judges, particularly Hawkins, pointedly and repeatedly asked why Imperial County’s deputy clerk was seeking the status, and no explanation was given as to why the county clerk did not.

Robert Tyler, an attorney with a religious advocacy legal firm representing Vargas and Imperial County pro bono, evaded the answer to that question both in and out of the courtroom. At a press conference following arguments, he claimed the answer was a matter of attorney-client privilege.

The three judges were equally tough in questions about the merits of Judge Walker’s decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to reinstitute segregation in public schools.

“No,” said Cooper.

“Why not?” asked Hawkins.

“Because it would be inconsistent with the U.S. Constitution,” said Cooper.

“As interpreted by the U.S. Supreme Court,” interjected Hawkins.

“Yes,” conceded Cooper.

But in 1870, the U.S. Supreme Court probably would not have interpreted the constitution to forbid segregation, would it? asked Hawkins.

Cooper conceded that was probably true.

“Well, how is this different?” asked Hawkins.

Judge Smith challenged Cooper using the Loving v. Virginia ruling by the U.S. Supreme Court that said states could not prohibit interracial marriage. He did so by noting that Cooper was arguing that the Supreme Court had already ruled on the right of states to proscribe same-sex marriage in Baker v. Nelson. The high court, in 1972, dismissed the appeal of a gay couple who had sought a marriage license in Minnesota. Dismissing an appeal has more significance than simply refusing to hear an appeal. But, in dismissing the Baker appeal, the high court explained it was doing so because there was no “substantial federal question” presented by the case. There is dispute within legal circles as to whether that dismissal means anything today. But Cooper, and others, have tried to make a case that the Baker action is precedent, and that it governs attempts by other states to ban same-sex marriages.

If Baker was precedent, said Smith, then why couldn’t states ban interracial marriage, too?

Cooper had to concede the right of states to decide who can marry is “not an absolute right” and that their right to do so “is limited by the restrictions of the U.S. Constitution.”

When Cooper tried to argue that society has a rational interest in the creation of children and in promoting responsible procreation to ensure that children are adequately cared for, Judge Reinhardt suggested that might be a “good argument for prohibiting divorce.”

Judge Smith jumped in to challenge Cooper on this point, too. He noted that California domestic partnership laws provide same-sex couples with all the same benefits and rights to marriage, including those involving child-rearing. What is the rational reason for denying same-sex couples the designation of the word marriage, he wondered.

Judge Hawkins challenged Cooper to explain how California’s same-sex marriage ban is different from Colorado’s Amendment 2 which said no law could prohibit discrimination based on sexual orientation. The Supreme Court struck down Amendment 2 in Romer v. Evans, saying that the only reason for the law was animus against gay people and that laws may not be justified by animus.

Cooper argued that Amendment 2 had been a “sweeping” denial of protections to gay people, in banking, employment, housing, commercial transactions, and many other areas of life. Proposition 8, he said, was focused just on marriage. And, in marriage, said Cooper, society had an interest to protect unrelated to animus against gay people, and that interest is promoting responsible procreation.

Therese Stewart, the openly gay Chief Deputy City Attorney for San Francisco, tackled that argument head-on, by noting that same-sex couples “do procreate—not in same way [as heterosexual couples], but they do procreate.”

Gay legal activists seemed pleased with how the arguments went Monday.

Evan Wolfson, head of the national Freedom to Marry organization, said that, overall, he thinks “it looks promising, both on standing and on the merits.”

Shannon Minter, senior counsel for the National Center for Lesbian Rights, agreed, saying he was especially encouraged that “at least two of the judges seemed highly critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.” And Ted Olson, he said, “was particularly eloquent and urged the Court to reach the broad question of whether same-sex couples have a fundamental right to marry.”

Jenny Pizer, head of Lambda Legal Defense’s Marriage Project, said she wouldn’t be surprised if the panel’s eventual ruling includes “multiple decisions” on how they reached the same outcome “with different reasonings.”

“And if they conclude Prop 8 is invalid while disagreeing about the details of why,” said Pizer, “that may be just fine.”

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court—during its almost inevitable appeal—would be 2012.

DADT Day 2: Repeal supported

The second and final day of the Senate hearing on repealing “Don’t ask, don’t tell” has adjourned and the battle lines are still very much where they were at the beginning, with one exception.

Scott Brown
Scott Brown

The second and final day of the Senate hearing on repealing “Don’t ask, don’t tell” has adjourned and the battle lines are still very much where they were at the beginning, with one exception.

Massachusetts’ Republican Senator Scott Brown said he would vote for repeal once it reaches the floor. He did not say whether he’d be willing to rebuff Republican Party leaders in order to help bring the measure to the floor.

And there’s the rub. Unless 60 votes can be mustered for call the Defense Authorization bill to the Senate floor, Brown’s profession of support of repeal of minimal consequence.

Thursday and Friday’s hearing made clear that the military leadership concedes—if not agrees—that the current ban on gays in the military should be repealed. The service chiefs of all four branches of the armed forces, plus the Coast Guard, believe repeal can be implemented without sacrificing readiness and unit cohesion. They believe the Pentagon report released November 30 provides a solid plan for implementation.

But not everyone agrees on timing, and discussion during the hearings went a long way to muddle exactly which timing everyone does not agree with: Timing for implementation, timing for full implementation, and timing for a Congressional vote on repeal.

This much is clear concerning implementation: Army General George Casey said “not now,” Air Force General Norton Schwartz said “not until 2012,” and Marine General James Amos said it should begin “when our singular focus is no longer on combat operations or preparing units for combat.”

“At that point,” said Amos, “then I’d be comfortable with implementing repeal.”

Other military leaders would be comfortable beginning the process now. That includes Defense Secretary Robert Gates, Joint Chiefs of Staff Chairman Admiral Mike Mullen, Joint Chief Vice Chairman General James Cartwright, Navy Admiral Gary Roughead, and Coast Guard Admiral Robert Papp. It includes at least 56 senators, 234 members of the House, and 50 to 70 percent of Americans (depending on which recent poll you look at). And, according to the Pentagon study, at least 70 percent of servicemembers say repeal would have a “positive, mixed, or no effect” on task cohesion.

The sticking point for senators is the timing of the Senate’s vote on whether to repeal. Republicans, led by Arizona Senator John McCain, are steadfastly against allowing a vote and have vowed to prevent the underlying Defense Authorization bill to the floor. They say it’s because the nation has more urgent matters—taxes, job creation—that the Congress should concern itself with in the waning days of the 111th Congress. Others say it’s because they want to stall issues they oppose—such as DADT repeal—from reaching the floor until next year, when they take control of the House and have a stronger posture in the Senate.

Most military leaders expressed concern during the hearings that Congress should take a vote now and they expressed enormous and unanimous confidence that Secretary Gates and Chairman Mullen would not sign the necessary papers for repeal implementation to begin until they were certain the service chiefs agreed the military’s readiness would not suffer. Their urgency was driven by concern that lawsuits are making their way through the federal court system now that have the potential to force the military to accept openly gay people immediately. Such a sudden demand, they said, would be seriously detrimental to military readiness.

The focus now shifts back to Senate Majority Leader Harry Reid and Minority Leader Mitch McConnell, and whether they will be able to come to an agreement that will allow the defense authorization bill to the floor. Prior to Dec. 1, such an agreement seemed to pivot on whether Reid would allow Republicans to proffer numerous amendments to the bill, including one to strip DADT repeal from the measure.

But on Dec. 1, McConnell and all 41 other Republicans in the Senate signed onto a letter to Reid, saying they would not vote to proceed on consideration of “any legislative item until the Senate has acted to fund the government and we have prevented the tax increase…”

Rep. Barney Frank says the annual defense authorization bill is not one of those bills that fund the government and that the letter is aimed at killing DADT repeal.

Other Democrats and the White House have tried to downplay the significance of the letter, saying it was nothing new and they weren’t going to get hung up on it.

But supporters of repeal have taken the letter seriously.

“If the 42 GOP senators—including several who support repeal of ’Don’t ask’—stand with their party on process and procedure, their vote will be an endorsement of the discrimination that has cost 14,000 men and women their jobs and put our country’s national security at risk,” said Aubrey Sarvis, head of the Servicemembers Legal Defense Network.

“A clear majority of the service chiefs support repeal this year,” said Sarvis. “Now, it’s up to the Senate. The National Defense Authorization Act, which includes the repeal provisions, must be called up in the Senate early next week under a reasonable approach that insures senators on both sides of the aisle a fair shot at amendments and debate. No debate on the merits of the bill will happen unless a handful of Republicans break off and support funding our troops.”

Olson-Boies in court Monday

David Boies will be arguing the issue of standing during oral argument in the Proposition 8 case Monday in a federal appeals court. Boies is co-lead counsel of the legal team challenging California’s same-sex marriage ban, along with another prominent attorney, Ted Olson. Olson will be arguing the merits of the lower court decision that found the ban unconstitutional.

David Boies will be arguing the issue of standing during oral argument in the Proposition 8 case Monday in a federal appeals court. Boies is co-lead counsel of the legal team challenging California’s same-sex marriage ban, along with another prominent attorney, Ted Olson. Olson will be arguing the merits of the lower court decision that found the ban unconstitutional.

The legal team defending Proposition 8, headed by attorney Charles Cooper, did not respond to requests for information about who will be arguing the merits and the standing issue for them.

Meanwhile, C-SPAN has announced that it will carry the argument live on its C-SPAN 1 channel. Arguments begin at 10 a.m. Pacific time and are expected to conclude at approximately 12:30 p.m.

Prop 8 judge rejects motion he recuse self

Federal appeals Judge Stephen Reinhardt on Thursday rejected a motion from attorneys defending Proposition 8 to recuse himself from participating in the case.

Federal appeals Judge Stephen Reinhardt on Thursday rejected a motion from attorneys defending Proposition 8 to recuse himself from participating in the case.

In a brief filed with the 9th Circuit U.S. Court of Appeals on Monday, attorney Charles Cooper and his team complain that, because Reinhardt is married to the executive director of the Southern California ACLU and the ACLU has been involved in challenging Proposition 8, Reinhardt should disqualify himself from hearing the appeal.

The 9th Circuit announced the three-judge panel on Monday. It also includes Judge N. Randy Smith, who graduated from both Brigham Young University and its law school. Brigham Young is a Mormon-run institution. But, so far, no one has yet filed a motion suggesting that Smith recuse himself.

Reinhardt’s wife and the ACLU “have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8,” states the Cooper request, “but they have been active participants in this very lawsuit.” Reinhardt’s wife, Ramona Ripston, says the brief “has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.”

In his two-page response Thursday, Reinhardt said he “will be able to rule impartially on this appeal” and believes a “reasonable person with knowledge of all the facts” would so conclude.

Yes on 8 attorneys will be before the three-judge panel on Monday morning at 10 a.m. Pacific time, when the panel is set to hear Yes on 8’s appeal of a lower court ruling that California’s same-sex marriage ban violates the federal constitution.

Military leaders stand firm: For repeal

The Pentagon’s top four leaders stood their ground Thursday during the Senate Armed Services Committee hearing on the Defense Department’s report concerning Don’t Ask Don’t Tell repeal. But there was considerable pushback from Republicans on the committee—and not just John McCain.

Admiral Mike Mullen
Admiral Mike Mullen

The Pentagon’s top four leaders stood their ground Thursday during the Senate Armed Services Committee hearing on the Defense Department’s report concerning Don’t Ask Don’t Tell repeal. But there was considerable pushback from Republicans on the committee—and not just John McCain.

A lot of important ground was covered—both technically, concerning certification and benefits, and personally, with top military officials making clear that they believe repeal is the right thing to do and that now is the right time to do it.

Important, too, were questions by Senators Susan Collins of Maine and Lindsey Graham of South Carolina—Republicans who, until recently, were considered potential votes to at least allow the Senate to debate the repeal measure.

Collins spent her time for questions laying out arguments to rebut criticisms made of the Pentagon’s report by McCain and others; and Graham seemed to have backed off his complaint last week that the study failed to investigate “whether” DADT should be repeal.

What is the question?

One of the chief criticisms hurled at the report by McCain and several other Republicans was that the Pentagon did not ask a direct question of the 400,000 troops surveyed to determine whether they would like Congress to repeal DADT. Collins noted that the Pentagon does not ask troops whether they want to go to Iraq either and that, while troops were not asked about DADT repeal directly, their thinking was certainly conveyed by their responses to less direct questions.

The insistence, by McCain and others, that troops should have been polled on whether to keep DADT elicited the strongest rebuke from the military leaders themselves. Both Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen repeatedly rejected the idea as “dangerous.”

Gates said that conducting a “referendum” on a matter of military policy “is a very dangerous path.” Mullen agreed, saying it would be an “incredibly bad precedent to essentially vote on a policy.”

McCain persisted, saying it was “not voting” on a policy, it was “asking their views.” He was not alone. Senator Scott Brown (R-Mass.) said he, too, felt the Pentagon should have asked a direct question.

Both McCain and Senator Saxby Chambliss (R-Ga.) seemed to flirt with the use of some inflammatory tactics during the hearing. McCain twice raised the issue of who was responsible for the current public release of classified documents by a website called Wikileaks—an act that is considered to be one of the most damaging breaches in intelligence confidentiality in American history. It has been widely reported that the 22-year-old Army private first-class who has been arrested for enabling the leaks, Bradley Manning, has identified himself as gay.

Chambliss noted that Admiral Mullen, in his opening statement both Thursday and at a previous hearing in February, indicated he had served alongside gay people and had gay people under his command. Chambliss asked questions to suggest that Mullen had failed to seek the discharge of these gay servicemembers as required by existing military policy at the time. (Mullen, however, noted that military law and policy has changed during the course of his career in the service and that, in fact, “every single one” of the gays he knew of were discharged. “I did this, and I saw this,” said Mullen.)

What is the difference?

There was considerable discussion of how the repeal of DADT might mirror the changes that took place in the late 1940s and 1950s after then President Truman signed an executive order requiring integration and again in the 1960s when Congress repealed a two-percent cap on the number of women who could serve.

“Social changes in the military have not been particularly easy,” said Gates. He said that “serious racial problems” plagued the military “at least through” the Vietnam War years and that women in the military still face the very real problem with sexual assaults.

McCain pointed out that, in 1993, General Colin Powell had opposed gays in the military and rebuffed attempts to compare discrimination based on race and that based on sexual orientation.

Jeh Johnson, the co-chair of the Pentagon study group, said he would agree that “issues of race and sexual orientation are fundamentally different.” But he said that, in his study of integration issues for the DADT report, he found that some of the nation’s greatest heroes in World War II “predicted negative consequences for unit cohesion if there was racial integration” of the troops.

Johnson, who is African American, also noted that surveys of 3,000 to 4,000 troops in the 1940s found that opposition to racial integration ran as high as 80 percent—and that was at a time when there were only about 700,000 black soldiers in a force of 8 million troops. It was also a time, said Johnson, when integration was not accepted by society at large.

“But we did it. It took some time. It was not without incident,” said Johnson, “but we did it and, I think the chairman said, the military was stronger as a result.”

In fact, Johnson said the opposition to racial integration then was “much more intense than the opposition to gays serving openly today in the military.”

What are the bottom lines?

Thursday’s hearing came across as a vigorous debate between Republicans on the Committee, most of whom seem to oppose repeal, and Democrats and the Defense Department’s top brass, who appear to support it. But it took place against the backdrop of a political gaming of the Senate’s parliamentary procedures. All 42 Republicans in the Senate signed onto a letter to Senate Majority Leader Harry Reid on Tuesday saying they would not agree to vote on “any legislative item until the Senate has acted to fund the government and we have prevented the tax increase….” Although the language of “fund the government” might provide some wiggle room for the defense authorization bill (because it authorizes the expenditure of funds for the government), the letter is being widely characterized as an obstacle to consideration of DADT repeal, which is contained inside the defense authorization bill.

Maine Republican Collins’ questions Thursday suggest she is still for repealing DADT—a position she took in the Committee’s original vote on the defense authorization bill in September. Unless she and at least one other Republican agree to provide the Democrats with the votes they need to reach 60 –to allow the defense authorization bill to the floor—Thursday’s debate and debate that will take place during Day Two of the hearing, tomorrow, are moot. So, essentially, the pressure is on Collins –who supports repeal—to find one other Republican willing to cross the party line with her to enable the defense authorization bill to come to the floor.

Collins has been ridiculed by a number of pundits in recent days for saying she didn’t know how to vote on another contentious piece of legislation—the START treaty—and that she would appreciate getting some direction from two former Republican presidents—the two Bushes. Such negative publicity may have inspired Collins to ask the pro-repeal oriented questions she asked at Thursday’s hearings.

The hope of convincing some Republicans to wiggle themselves around the Republican drop dead letter could well have been behind Secretary Gates’ repeated assurances Thursday that he would not sign the necessary document to “certify” the troops are ready to implement repeal until “everything has been done” to ensure the troops are ready and that the chiefs of each of the service branches “are comfortable” that any risks to combat readiness had been “mitigated if not eliminated.”

Neither Gates nor Mullen suggested how long it might take to certify such readiness after Congress votes to repeal the law. But both also sought to impress upon the Committee another issue with regard to timing: The courts.

“Whatever risk there may be to repeal of this law, it is greatly mitigated by the thorough implementation plan included in this study, the time to carry out that plan, and effective, inspirational leadership,” said Mullen in his opening statement.

“Now, let me tell you what I believe,” continued Mullen. “I believe our troops and their families are ready for this. Most of them believe they serve, or have served, alongside gays and lesbians, and knowing matters a lot….

“I believe now is the time to act. I worry that unpredictable actions in the court could strike down the law at any time, precluding the orderly implementation plan we believe is necessary to mitigate risk,” said Mullen. “I also have no expectation that challenges to our national security are going to diminish in the near future, such that a more convenient time will appear.”

GOP drop dead letter cripples DADT repeal

Republicans say they’re trying to create “an environment for private-sector job growth;” Rep. Barney Frank says they’re just trying to stop repeal of Don’t Ask, Don’t Tell.

The evidence for both is the same: A letter to Senate Majority Leader Harry Reid December 1 signed by all 42 Republican senators saying they would not vote to proceed on consideration of “any legislative item until the Senate has acted to fund the government and we have prevented the tax increase….”

Republicans say they’re trying to create “an environment for private-sector job growth;” Rep. Barney Frank says they’re just trying to stop repeal of Don’t Ask, Don’t Tell.

The evidence for both is the same: A letter to Senate Majority Leader Harry Reid December 1 signed by all 42 Republican senators saying they would not vote to proceed on consideration of “any legislative item until the Senate has acted to fund the government and we have prevented the tax increase….”

Frank says the annual defense authorization bill—which includes language this year to repeal the military’s ban on openly gay servicemembers—is not one of those bills that fund the government, and other controversial bills, such as the DREAM immigration act, are already considered unlikely to pass.

“So, Don’t Ask, Don’t Tell is the only thing that has a real chance to pass,” said Frank, “and this is their way to kill it.”

And Don’t Ask Don’t Tell (DADT) is apparently what they will kill, for there is no alternative parliamentary procedure to get around a vote for cloture—a vote that enables a bill came come to floor despite any senator’s objection. Such votes require 60 votes to succeed, and with 42 Republicans standing firmly against any motion for cloture, no bill can proceed to the floor without at least two Republican turncoats.

Things only get worse next month when the new Congress is seated. Republicans in the 112th Congress will hold 46 seats in the Senate and a majority in the House.

Still, most LGBT groups have not given up—at least not publically. Fred Sainz, a spokesman for the Human Rights Campaign called the Senate Republicans’ letter a “bluff” and said HRC “would expect senators to do the right thing” on the defense authorization bill.

Servicemembers Legal Defense Network urged Reid to try and bring the defense authorization bill to the floor next week anyway.

But Log Cabin Republicans, the national gay Republican group, said it “strongly supports” the Republican letter’s “call to immediately address” the tax issue.

The tax issue is whether Congress will extend tax breaks approved under the Bush administration—tax breaks that are set to expire December 31. Democrats want to extend the cuts only for those making below $250,000; Republicans want to extend them for everybody, including the very rich.

“While time is limited on the legislative calendar,” said R. Clarke Cooper, the organization’s executive director, “the Congress can complete action on taxes as well as a DADT repeal inclusive” defense spending bill.