Memo to Maryland: Honor out-of-state marriage licenses

Just days before Washington, D.C.’s new marriage equality law is set to go into effect, the attorney general of neighboring Maryland issued a long-awaited opinion on whether same-sex marriages validated in other jurisdictions “may be recognized” under Maryland state law.

maryland_flagJust days before Washington, D.C.’s new marriage equality law is set to go into effect, the attorney general of neighboring Maryland issued a long-awaited opinion on whether same-sex marriages validated in other jurisdictions “may be recognized” under Maryland state law.

“The answer to that question,” wrote Attorney General Douglas Gansler, in an opinion dated February 23 and released February 24, “is clearly ‘yes’.”

But what’s not entirely clear yet is what “may” means. Equality Maryland Executive Director Morgan Meneses-Sheets said Gansler made clear, “in no uncertain terms,” that state agencies are “compelled to act in compliance with the law by providing equal protections to same-sex couples with valid, out of state licenses.”

“That’s a big change,” said Meneses-Sheets.

The attorney general’s office did not return repeated calls for clarification, but the Washington Post reported Thursday that Gansler, “declared Wednesday that Maryland will recognize same-sex marriages performed elsewhere and that its agencies should immediately begin affording gay married couples the same rights as heterosexual ones.”

Much of the reaction to Gansler’s memo seemed to presume there was an immediacy to his issuance, and it reflected both praise and promises of undoing. Gay civil rights groups were understandably happy and right-wing entities, such as the Catholic Church, were predictably dismayed with the opinion. One delegate in the state House suggested the attorney general should be impeached.

Governor Martin O’Malley, choosing his words carefully, said the state would be “guided” by the “thorough analysis and legal advice.”

“I expect all State agencies to work with the Attorney General’s office to ensure compliance with the law,” said the Democratic governor.

But in his 55-page memo, Gansler took considerable pains to make clear that his memorandum was a directive.

The memo “is not itself the law of Maryland in the same sense as a statute… or court decision,” said Gansler. “Rather it is an interpretation of the statutory or common law that can guide a client agency and may be persuasive to a court reviewing agency action based on the opinion.”

“Thus, what we say in this opinion is a prediction, not a prescription, as to the how the [state] Court would approach this issue under current law,” wrote Gansler.

Gansler’s memorandum was addressed to openly gay State Senator Richard Madaleno, who requested an opinion last May as to whether Maryland could recognize same-sex marriages licensed elsewhere. Madaleno also asked whether the governor could issue an executive order to direct state agencies to recognize same-sex marriages licensed elsewhere. In 2008, New York Governor David Paterson directed his general counsel to send out such a directive.

Gansler responded that Paterson’s executive order had been based on a state court order and that no similar court order had been rendered in Maryland, so Governor O’Malley, he said, was not at liberty to issue a similar directive.

In his opinion, Gansler predicts the state court would “likely respect the law of other states and recognize a same-sex marriage contracted validly in another jurisdiction.”

“The Court of Appeals would start from the general principle that a marriage that is valid in the place of celebration remains valid in Maryland,” wrote Gansler. “There is an exception to that rule if the particular marriage is contrary to a strong State public policy.”

But the Gansler memo indicates that Maryland has only rarely used the public policy exception in relation to marriage. He noted, for instance, that the state has accepted as legitimate a marriage between an uncle and a niece from another state even though Maryland law prohibits such marriages.

Importantly, he suggests that Maryland public policy has, in fact, been moving toward greater acceptance of same-sex relationships.

“While Maryland law does not allow for same-sex marriages,” he noted, “it provides significant recognition and support of same-sex relationships.”

And while the Maryland General Assembly passed a law in 1973 specifying that “[o]nly a marriage between a man and a woman is valid in this State,” he points out, several attempts to amend state law and the state constitution to explicitly bar recognition of same-sex marriages have failed. Now, said the attorney general, “the statute no longer expresses a public policy of the State that so condemns same-sex relationships as to create an exception to principle of comity that usually governs recognition of out-of-state marriages.”

Comity is a term used to describe the practice of one state recognizing a legal declaration issued in another state.

At the same time, he notes that the state legislature, in passing a bill in 2001 to prohibit sexual orientation discrimination, added an explicit clause to note that the new law would not validate same-sex marriage in the state. And, in 2007, the state’s highest court, the Maryland Court of Appeals, ruled that neither the state’s Equal Rights Amendment nor the state’s constitution required the state to license marriages of same-sex couples the same as with heterosexual couples.

“While this is welcome news for those couples who were legally married in one of the growing number of states with equality in marriage,” said Sen. Madaleno, “nothing in the Attorney General’s opinion changes the fact that same-sex couples cannot obtain marriage licenses in Maryland.”

That may be true, but next Wednesday, March 3, couples will be able to obtain marriage licenses in neighboring Washington, D.C.

Currently, only five other states issue marriage licenses to same-sex couples—Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire. Only two other states—New York and Rhode Island—recognize marriage licenses validly obtained elsewhere, according to the national Freedom to Marriage group.

Evan Wolfson, head of the national Freedom to Marry group, applauded the Gansler memo, saying, “Maryland will continue to follow the tradition and common-sense practice of honoring out-of-state marriages, without a ‘gay exception’.”

“As same-sex couples marry next door in the District of Columbia and across America,” said Wolfson, “Maryland will treat those families with respect, giving Marylanders a chance to see neighbor couples legally married, with families helped and no one hurt.”

Full faith and credit helps gay parents overcome ban

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

Ken Upton
Ken Upton

The battle over equal rights to marriage has dominated much of the news concerning the LGBT civil rights movement for the past 17 years, but there have been gains recently in the battle over gay family rights in general. And in just the past week, there were important developments in two significant courts.

The U.S. Supreme Court on Monday, February 22, declined to review the appeal of a lesbian mother, identified as Kristina S. in Texas, who sought to prevent her former domestic partner, Charisma R. in California, from continuing her parental relationship with a child they had together. By not hearing the case, the high court simply left intact decisions by the courts of California that upheld the non-biological mother’s rights. But the California court ruling held that the non-biological mother’s parental status was established by the fact that she helped prepare for the child’s birth through insemination, “held herself out” as the child’s mother publicly, and helped care for the child after it was born.

Gay family law expert Nancy Polikoff described the California Court of Appeals decision last year as “the clearest and most comprehensive analysis of why U.S. Supreme Court cases on parental rights do not foreclose Charisma’s parentage and actually protect a person designated as a parent under state law, as Charisma was in this case.” While the decision of the Supreme Court not to take the case has no important legal value, she said, “it can’t help but add the tiniest bit of ‘oomph’ to” similar conflicts in other states.

Kristina S. v. Charisma R. was appealed by the biological mother’s attorneys from the right-wing Liberty Counsel. The Liberty Counsel has also been representing former lesbian Lisa Miller against her former civil union partner Janet Jenkins in a highly publicized custody battle between Vermont and Virginia. The Liberty Counsel tried unsuccessfully to appeal Miller’s case to the U.S. Supreme Court also—and was also denied review in that case. The Miller-Jenkins custody battle continues, with Miller having disappeared with the daughter in order to avoid a Vermont court order that she transfer custody to Jenkins. A Virginia court of appeals on February 23 rejected her third lawsuit to have the Vermont custody orders nullified.

Meanwhile, the Liberty Counsel filed a friend-of-the-court brief in another important case this month.

On February 18, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit –which covers Texas, Louisiana, and Mississippi– upheld the right of a gay couple from California to obtain an amended birth certificate for a Louisiana-born child they adopted in New York State five years ago. The state of Louisiana had refused to issue the routine amended birth certificate, claiming that to do so would be tantamount to allowing adoptions by unmarried couples, which is barred by state law there.

Ken Upton, Supervising Senior Staff Attorney for Lambda Legal Defense and Education Fund, which represented the gay couple, said the court simply ruled the way courts have ruled on similar matters in “tons of cases over the last century.”

“But it was a landmark in Louisiana,” he said, “because [the state] tried to argue that they should have some special exemption from the [U.S. Constitution’s] ‘full faith and credit’ clause because it violates a policy they would like to enact to restrict the rights of gays and lesbians.”

The U.S. Constitution’s “full faith and credit” clause states, “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”

In this instance, said the judges, Louisiana owed full faith and credit to a judicial proceeding from New York, which granted the gay couple the adoption. The panel made clear that it was applying the full faith and credit requirements to court judicial proceedings in this case, not to New York state laws concerning adoption.

The judges—which included two Republican appointees—was unusually harsh in its characterization of Louisiana’s defense of its actions, saying the state’s argument was a “shallow, circular attempt” to conflate a judgment and a statute as the same thing.

“Whether the New York adoption contravenes Louisiana’s ‘public policy’ [of barring adoptions by unmarried couples] is simply irrelevant and immaterial,” said the panel. The “plain language of Louisiana’s own statute requires that a new, corrected birth certificate be issued to Louisiana-born adopted minors and their adoptive parents…,” wrote the panel, and “that requirement must be applied in an ‘evenhanded’ manner.”

The case, Oren Adar v. Darlene Smith, involved a gay male couple – Oren Adar and Mickey Ray Smith— who sought an amended birth certificate for a boy born in Louisiana in 2005. They jointly adopted the child in the state of New York that same year. Darlene Smith is the Louisiana state registrar and director of vital records, who was represented by the state attorney general’s office.

The gay couple applied in Louisiana for the birth certificate listing each of them as a parent of the child and indicating the child’s new legal name. But Darlene Smith refused to issue the certificate, saying state law prohibited unmarried couples from adopting children.

Polikoff agreed with Lambda’s Upton that the 5th Circuit decision “restates what the U.S. Supreme Court has said continuously, that there is no ‘public policy’ exception to the Full Faith and Credit Clause.”

“Judgments from a state court are different from a state’s statutes,” explained Polikoff, in her blog. “Statutes are not entitled to Full Faith and Credit. Had Adar and Smith become parents of their son by virtue of their marriage or civil union [in another state], for example, Louisiana might not have been required to recognize their dual parentage. It’s a word to the wise for all same-sex couples having children. Get to a lawyer. Get a court order.”

Liberty Counsel founder Mathew Staver has said cases such as this, although they involve adoption, provide a “back door” entrance to marriage equality.

“It’s not generally a direct, head-on, frontal assault with regards to same-sex marriage,” he said in a statement about the Adar case last year when the Republican appointed district court judge ruled for the gay couple. “But the fact is, if a sister state is required to recognize same-sex adoption, even though it doesn’t recognize it within the state, that is essentially a component that is a significant, central aspect of marriage.”

In its opinion, the 5th Circuit panel noted that only one other federal appeals court has dealt with a similar case. The 10th Circuit, it noted, ruled the state of Oklahoma’s law barring same-sex couples from adopting children from other jurisdictions had violated the full faith and credit clause.

Lambda’s Upton said he has heard Louisiana will appeal the decision, either to the full 5th Circuit bench or to the U.S. Supreme Court.

But for now, he said, “we’re pleased the court agrees that it’s wrong to punish children just because the Registrar doesn’t like their parents.”

Vermont judge: Fugitive mother in contempt

A family court judge in Vermont Tuesday issued a warrant for the arrest of former lesbian Lisa Miller who disappeared with the child she once shared with her former civil union partner, Janet Jenkins.

Undated photo of Isabella Miller-Jenkins
Undated photo of Isabella Miller-Jenkins

A family court judge in Vermont Tuesday issued a warrant for the arrest of former lesbian Lisa Miller who disappeared with the child she once shared with her former civil union partner, Janet Jenkins.

Judge William Cohen, a judge in Rutland County, Vermont, ruled February 23 that Miller was in contempt of the Vermont court for failing to turn over custody of the daughter to Jenkins on January 1, as ordered.

According to one of Jenkins’ lawyers, Sarah Star, the judge’s order is essentially an arrest warrant for a misdemeanor. Jenkins must now hope that the state’s attorney in Rutland will seek to file felony criminal charges against Miller. If he does, law enforcement officials in all 50 states, she says, will be empowered to arrest Miller and hold her on $50,000 bond.

Just last week, Judge Louis Harrison, a family court judge in Bedford, Virginia, said he could not issue an arrest warrant for Miller because he could not be sure Miller was aware of the Vermont judge’s order. Miller’s attorney, Mathew Staver, founder and chairman of the right-wing Liberty Counsel litigation group, has told reporters he does not know where Miller is.

The Miller-Jenkins custody battle has gotten enormous publicity during the past several years, including an appeal to the U.S. Supreme Court in 2008. The Supreme Court refused to hear Miller’s appeal of a Virginia Supreme Court ruling that said Miller must comply with the order from a Vermont family court. That court, at the time, had allowed Jenkins visitation rights with her daughter. But Miller’s attorneys continued to file additional litigation seeking to overcome the court orders, and Miller refused to allow Jenkins to visit their daughter. That refusal prompted the Vermont court to order Miller to transfer custody of the daughter to Jenkins. It set January 1, 2010, as the date Miller should make the transfer. But instead of complying, Miller disappeared with her daughter.

Star said Jenkins last saw her daughter, who will turn eight in April, in January 2009.

In addition to the contempt hearing, the Virginia court also held some confidential proceedings in the county juvenile court last week, and some participants in that hearing have revealed some aspects of those proceedings outside court.

In addition to Star, Jenkins is being represented in the various legal proceedings by the Lambda Legal Defense and Education Fund, the ACLU of Virginia, and Gay & Lesbian Advocates & Defenders.

The Miller-Jenkins girl is one of 142 children who have been reported as missing in Virginia during the last two years alone—85 of them girls—according to the National Center for Missing and Exploited Children.

Miller has contended that she denied court orders because her daughter had threatened suicide and began exhibiting “strange” behavior after her visits with Jenkins.

In a 2008 interview, Miller also revealed that she herself had tried to commit suicide at one time. During a state hospital stay to address that suicide attempt, Miller said, hospital personnel told her they thought she was a lesbian. She said she soon thereafter pursued a lesbian relationship “trying to recreate a mother/daughter bond that I never had.” Miller said her initial lesbian relationship failed and she sought counseling at the Whitman-Walker Clinic, a gay community health clinic in the Washington, D.C. area. She said she eventually met Jenkins at a group counseling meeting and moved in with her about six months later, in 1998.

The full interview can be read at

Obama’s new proposal: LGBTs still missing

President Obama released a new health care reform bill that he says incorporates work done in the House and Senate and adds ideas from Republican members of Congress. But there’s no inclusion in this new proposed measure of any of the gay-related provisions in the original House bill.

Tammy Baldwin
Tammy Baldwin

President Obama released a new health care reform bill Monday that he says incorporates work done in the House and Senate and adds ideas from Republican members of Congress. But there’s no inclusion in this new proposed measure of any of the gay-related provisions in the original House bill.

But it’s not all bad news. The president’s proposal calls for $11 billion for “the operation, expansion, and construction of community health centers” around the country. And that money could help at least some LGBT and HIV centers around the country.

Rep. Tammy Baldwin (D-Wisc.), the openly gay member of Congress who was a leader in adding pro-gay provisions to the House health reform bill, says she hasn’t given up hope. She called President Obama’s proposal Monday “an important step forward” that “helps to regain our momentum” on health care reform efforts.

But, she added, “it is not the final word.”

In fact, it’s not even a bill, yet. The president’s proposal is a “new starting point,” as White House Press Secretary Robert Gibbs put it during a routine press briefing Monday. Gibbs and other White House spokespersons have been cautious in laying out what they believe will happen next on the proposal. A key turning point, they say, will be a much-publicized summit Thursday between the President, Democratic leaders, and key Republicans.

But prospects for the leaders to agree on at least a draft bill for the Senate and House to take up anew has already been dimmed by statements from Republican leaders who are supposed to be heading into that crucial February 25th meeting.

“The President has crippled the credibility of this week’s summit by proposing the same massive government takeover of health care based on a partisan bill the American people have already rejected,” said House Minority Leader John Boehner (R-Ohio). Senate Minority Leader Mitch McConnell (R-Ky.) echoed Boehner, calling the president’s proposal “another partisan, back-room bill.”

Prospects for adding back in the pro-gay House provisions are, of course, even worse and have clearly not improved since last December when they failed to make it into the Senate bill. And the Senate bill is where the president’s proposal starts.

“The President’s proposal assumes the base Senate bill,” said Shin Inouye, a spokesman for the White House with LGBT media. But Inouye pointed out that the president’s proposal does include “data collection.”

The “data collection” mentioned in the House bill called for the establishment of an office of Assistant Secretary for Health Information to promote the collection of data about “sexual orientation” and “gender identity” (along with a great many other categories) to help identify health issues and the need for programs. The proposal posted by the White House Monday calls for improved “data collection and analysis, facilitates better data sharing, and requires the development of standards for the collection of data regarding the nation’s health and the performance of the nation’s health care, including health disparities.”

Ronald Johnson, deputy director of the AIDS Action, said he is concerned that some aspects of the House bill that were favorable to the LGBT communities will be left out but that the proposal is still “a moving ball.”

Johnson and Darrel Cummings, chief of staff for the L.A. Gay & Lesbian Center, said the $11 billion designated for community health center money is a definite plus.

Cummings noted that the Los Angeles center has earned designation as a “Federally Qualified Health Center-Look Alike”—a designation that means it is eligible to receive funding under the Public Health Service Act money for underserved populations but has not yet received any.

“We have been awaiting notice of funding availability for some time now and are very hopeful that this legislation would create the funding necessary for that to happen,” explained Cummings.

Most LGBT and HIV activists had supported the House bill because it included key LGBT specific provisions. In addition to the data collection, it prohibited discrimination based on sexual orientation and gender identity in the provision of health care; enabled people with HIV and low incomes to obtain Medicare coverage earlier in the course of their illness; and eliminated the tax that gay employees must pay if their same-sex partners or spouses receive health coverage from their employers’ plan. Straight employees don’t pay that tax but, for gay couples, the coverage is characterized by the federal government as additional income for the gay employee.

Baldwin said Monday she would “continue to fight for all of my priorities in the final health care reform bill, including those related to LGBT health.”

Baldwin warned last September that there were “many reasons why people in the LGBT community ought to be following the health care reform very closely.”

“Our lives are very much going to be affected by this legislation,” said Baldwin at the time, in a videotaped message, “and certainly our health is.”

No strong liberals among Obama’s appeals court nominees

In just a couple of months, speculation concerning the retirement of U.S. Supreme Court Justice John Paul Stevens will once again rev up. He’ll turn 90 in April and, last fall when justices typically do, he did not hire a full complement of clerks for the 2010-11 session.

scalesIn just a couple of months, speculation concerning the retirement of U.S. Supreme Court Justice John Paul Stevens will once again rev up. He’ll turn 90 in April and, last fall when justices typically do, he did not hire a full complement of clerks for the 2010-11 session.

As critical as that potential vacancy is to the prospects of such legal battles as the ones over equal rights in marriage, the more important focus right now should be on appointments to the nation’s federal appeals courts.

Here’s why:

First, every single one of the current nine justices came from a federal appeals court, as did 12 of the last 14 appointees. This is not a legal requisite for the job, but it has become a political expectation. President George H.W. Bush appointed Clarence Thomas to the U.S. Court of Appeals for the D.C. Circuit in 1990 and then promoted him to the U.S. Supreme Court in 1991. President George W. Bush appointed John Roberts to the D.C. Circuit in 2003 then bumped him up to the high court in 2005. President Ronald Reagan put Antonin Scalia on the D.C. Circuit bench in 1982 and then appointed him to the Supreme Court in 1986.

Second, 19 of the appeals courts’ 179 seats are currently vacant. President Obama has only eight nominees pending for these positions. All eight are relative moderates. The same might be said of four other circuit court nominees whom Obama made and who have been confirmed thus far.

Joseph Greenaway, who was confirmed just this month for the 3rd Circuit, clerked for a district court appointee of Republican President Gerald Ford.

Andre Davis, confirmed in November to sit on one of the nation’s most conservative circuits—the 4th—worked in the Civil Rights Division of the Department of Justice in the last months of President Jimmy Carter’s administration. But Senator Dick Durbin (D-Ill.) noted that some disability rights groups have criticized Davis’ record.

Gerald Lynch, confirmed to the 2nd Circuit last September, has perhaps the most liberal-leaning credentials. He clerked for one of the U.S. Supreme Court’s most liberal justices, William Brennan, from 1976 to 1977, and, until he became a federal district court judge in New York, he belonged to the ACLU. Also, in answering a staple question on the Senate Judiciary Committee questionnaire—about whether nominees have ever belonged to a group that discriminated on the basis of “race, sex, religion, or national origin”—Lynch wrote, “I have never been, nor would I ever be, a member of any club or organization that discriminates on the basis of race, gender, religion, national origin, age, disability, or sexual orientation.”

David Hamilton, who was confirmed in November to the 7th Circuit, was also once a board member of the state ACLU in Indiana. His record includes authoring a brief in a divorce case, defending the right of a father with HIV to retain his parental rights. Hamilton said terminating those rights because the man had HIV was unconstitutional.

Of the eight nominees still awaiting confirmation, three are in the 4th circuit where their numbers could well tip the political balance towards the middle. Only one of the nominees for that circuit, Barbara Keenan, has any sort of paper trail on gay-related matters. Keenan, who has served since 1991 on the Supreme Court of Virginia, wrote the dissent from the state court’s 1995 decision denying Sharon Bottoms custody of her child because Bottoms was openly gay. More recently, she wrote the unanimous decision respecting a decision of a Vermont family court that granted joint custody of a child to both the biological mother, Lisa Miller, and her former civil union partner, Janet Jenkins. In both cases, however, Keenan’s reasoning was based on procedural issues.

As a trial judge, Keenan in 1984 ruled that the state went too far when it forced a bookstore to shut down because sexually explicit activities—including homosexual activities—were taking place at the store. Keenan ruled that closing the store was too broad a remedy to address the problem. An appeals court later reversed her decision.

In the 11th Circuit, Obama nominated Beverly Martin, who was hired by the notoriously anti-gay Georgia Attorney General Michael Bowers to be an Assistant Attorney General. During the 10 years she was in that position, Bowers withdrew a job offer from attorney Robin Shahar when he found out she was a lesbian. There is no indication that Martin was involved in defending Bowers when Shahar filed a federal lawsuit against him. The only other case of relevance for her was a case she ruled on as a federal district court judge in Georgia. In that case, Martin ruled that a public school dress code against clothing that displayed “words or symbols that are inflammatory, derogatory, insulting to other students, or in reference to gangs” was “void for vagueness.” Such laws have had a mixed record of being used to protect against hate-related messages directed at gays.

Gay civil rights issues have been of some interest to Republicans on the Senate Judiciary Committee. During the confirmation process, judicial nominees answer questions at a public hearing but also questions posed to them in writing. Many of the questions posed by Republicans thus far have been essentially identical, suggesting some outside entity submitted the questions to each of the Republican senators and asked them to pose the questions to the nominees. One question asks, in a roundabout way, about the constitutionality of the Defense of Marriage Act (DOMA).

Hamilton essentially dodged the question by offering that he was “not aware of any court decision concluding that [DOMA] would violate the United States Constitution.”

One of the more unusual questions was this: “During his campaign, President Obama announced: ‘We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old-and that’s the criteria by which I’ll be selecting my judges.’ Which, if any, of these categories do you believe best describes your judicial philosophy as laid out by the President?”

Most of the nominees have dispenses with the question fairly quickly, saying either that empathy plays no role in their judicial decision-making or that, to the extent that it does, it is empathy for all.

“Federal judges take an oath to administer justice without respect to persons and to do equal right to the poor and to the rich,” wrote Hamilton. “Empathy for all parties—to be distinguished from sympathy—is important in fulfilling that oath. If confirmed, I will apply the law fairly and accurately to all parties before me.”

Most importantly, President Obama has 12 more vacancies on the circuit courts which he has not yet submitted a nominee. That includes two appointments, as of this month, to the 9th Circuit U.S. Court of Appeals, which covers California and which is expected to hear the landmark Proposition 8 case as early as next year.

And given that most cases are never heard by the U.S. Supreme Court, the appointments to the appeals court level have the potential to affect LGBT lives in the various circuits for years to come.

Schumer recommends Obama appoint gay fed judgeship

Of 678 federal district court judges in the country, only one has voluntarily identified as being gay?

It is for that reason that there is cause for excitement that President Obama may be on the verge of nominating another.

scalesOf 678 federal district court judges in the country, only one has voluntarily identified as being gay?

It is for that reason that there is cause for excitement that President Obama may be on the verge of nominating another.

U.S. Senator Charles Schumer (D-NY) announced this month that he is recommending the president nominate openly gay attorney Daniel Alter to serve on the U.S. District Court for the Southern District of New York—which includes Manhattan and environs.

That just happens to be the same district bench on which the nation’s first, and thus far only, openly gay federal judge sits. Judge Deborah Batts became the first openly gay person appointed to a federal judgeship when, in 1994, she was appointed by then President Bill Clinton.

The San Francisco Chronicle famously reported earlier this month that Vaughn Walker, the chief judge for the U.S. District Court for Northern California, “is himself gay.” But Walker has not made any public disclosures, in the Chronicle or elsewhere, to confirm the paper’s assertion.

Thus, Alter—if nominated and confirmed—would become the first openly gay man on any federal bench in the country.

Alter is national director of the civil rights division of the Anti-Defamation League, where he has worked on issues such as hate crimes. He is a graduate of Yale Law School and clerked for two other Yale Law alumni—both appeals court judges—one was appointed by Republican President George H.W. Bush, the other by President Bill Clinton.

Alter is no stranger to the district court. For six years, he served as an Assistant U.S. Attorney for the Southern District of New York, specializing in terrorism issues, as well as First Amendment law.

Alter sought his appointment through the Gay & Lesbian Victory Fund’s Presidential Appointments Project, which has recorded more than 100 openly gay appointees to various administration positions thus far.

Schumer made his announcement in a statement to the Human Rights Campaign gala in New York February 6 and through a press release February 8, calling Alter a “brilliant attorney” with “extensive experience.”

“I’m proud to nominate Daniel Alter, period,” said Schumer. “But I am equally proud to nominate him because he is a history-maker who will be the first openly gay male judge in American history.”

The Human Rights Campaign issued a press release putting its support behind Alter, calling him “eminently qualified.” The group sent a letter to President Obama’s transition team in December 2008 urging his appointment.

U.S. senators often make recommendations to the president for judiciary appointments, and then Senate Daniel Patrick Moynihan recommended Batts’ appointment to then President Bill Clinton. But a president is under no obligation to accept those recommendations. But political observers have noted that President Obama has appeared to take such recommendations to heart.

White House LGBT spokesperson Shin Inouye said the White House had no comment on the possibility of the appointment at this point.

Last month, the U.S. District Court for the Northern District of California appointed openly gay law professor Donna M. Ryu as a full-time magistrate judge for Oakland, California. Ryu is on the faculty of the University of California’s Hastings College of the Law and was a founding member of the Berkeley Women’s Law Journal.

The Chief Judge for the U.S. District Court for the Northern District of California is Vaughn Walker.

Report that Prop 8 judge is gay: long on speculation

With no named sources and a “no comment” from the judge, the San Francisco Chronicle this week reported that it is an “open secret” in San Francisco that the federal judge presiding over the Proposition 8 trial “is himself gay.”

Judge Vaughn Walker
Judge Vaughn Walker

With no named sources and a “no comment” from the judge, the San Francisco Chronicle this week reported that it is an “open secret” in San Francisco that the federal judge presiding over the Proposition 8 trial “is himself gay.”

The report came in the form of a February 7 column by the regular columnist duo of Andrew Ross and Phillip Matier, stating, “Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist…has never taken pains to disguise—or advertise—his orientation.”

Matier and Ross wrote that Walker “wouldn’t comment to us when we asked about his orientation and whether it was relevant to the lawsuit.” When they asked the judge whether he had any concerns about being characterized as gay, the judge, they wrote, said “no comment.”

Walker last month presided over three weeks of testimony presented in Perry v. Schwarzenegger, a case challenging the constitutionality of California’s ban on same-sex marriage. The ban was established after voters approved Proposition 8 in November 2008.

Matier and Ross noted that, “shortly” after speaking with Walker, they heard from “a federal judge who counts himself as a friend and confidant of Walker’s.” This judge, who they said “asked not to be identified,” told them that Walker was concerned “people will come to the conclusion that (Walker) wants to conceal his sexuality.”

The article does not claim that the anonymous friend identified Walker as gay.

“He has a private life and he doesn’t conceal it,” the friend is quoted as saying, “but doesn’t think it is relevant to his decisions in any case, and he doesn’t bring it to bear in any decisions.”

Walker, the chief of district court judges in the Northern California federal district, was appointed to the bench by President George H.W. Bush. As Matier and Ross also point out, Walker was one of the attorneys representing the U.S. Olympics Committee in 1985 when it prohibited the San Francisco Arts & Athletics Association from calling its event the Gay Olympics. Walker and his colleagues at Pillsbury, Madison & Sutro won the USOC’s case in 1986 before the U.S. Supreme Court.

The column in the Chronicle triggered relatively few reports in other news venues—only 60 nationwide by Tuesday, following the Chronicle’s original posting on Sunday. The New Yorker magazine’s law columnist Margaret Talbot says the Chronicle column “comes right out and says what has been relegated to the rumor-mill. Longtime gay legal activist Nan Hunter, at, said she had heard “rumors,” too, but that they were “so discreet that there was no substantiation of it.”

Some media organizations, like San Francisco’s gay newspaper Bay Area Reporter, say the Chronicle’s column constitutes an outing—or involuntary revelation of a person’s sexual orientation. Others, like San Francisco Weekly, say it doesn’t.

“Can you ‘out’ someone who isn’t in the closet?” asked the Weekly’s legal columnist Lauren Smiley. “As the Chron story itself noted, Walker never took pains to conceal his sexuality. And any derision tossed the paper’s way has to come with the caveat that the Chron is only factually confirming what others had publicly speculated about.”

Smiley notes that an openly gay blogger and longtime gay/AIDS activist, Michael Petrelis, had written in his blog last July saying his “gaydar” identified Walker as gay during a preliminary hearing that Petrelis attended. Smiley did not mention that Petrelis’ blog also clearly stated, “I lack solid proof Walker is indeed gay.” Instead, she uses her column about the Chronicle column to relay such colorful Petrelis speculations as Walker “would make an excellent entertainer at a gay piano bar for refined mature gentlemen.”

The Chronicle contends its report did not constitute an “outing” of the judge, saying the judge was already out. Another columnist at the paper wrote a column saying the Matier and Ross column was a public service, addressing the public’s “right to know.”

“Until Sunday, it seemed inevitable that, however Walker ruled [in Perry v. Schwarzenegger], the losing side would bring up his sexual orientation,” wrote columnist Debra J. Saunders. “If he overturned the measure, losers would hit the conservative media to argue that, with a gay judge presiding, the fix was in from the start. If Walker upheld the measure, angry gay activists would denounce him as a self-loathing turncoat.

“Now,” said Saunders, “whatever Walker decides, the public can’t complain that he had a sub rosa agenda.”

Ross, asked what evidence he and co-author Matier used to confirm their report that Walker is gay, did not provide any details. But, said Ross in an email, “we would not have written our column without getting confirmation.”

Ross, who shared that he is straight, married, and has two children, said he has close relatives who are gay and in “loving relationships.”

Matier did not respond to a reporter’s request for comment.

Matier and Ross do not frequently tackle gay-related topics. But just last month, they reported that a Mormon on the board of an historic landmark in Oakland “appears” to have lost his seat because he made a $26,000 contribution to the Yes on 8 campaign. No one quoted in the story—not even the Mormon board member—was quoted as making the claim that the Mormon had not received reappointment to the seat because of the contribution.

And last October, they reported that Governor Arnold Schwarzenegger sent openly gay Assemblymember Tom Ammiano a hidden “F— You” message in a letter explaining his veto of legislation Ammiano had sponsored. Their evidence: The first letter of the second and third paragraphs started with the letters “F” and “Y.”

Is it an “open secret” in San Francisco that Judge Walker is gay? During this reporter’s stay in the city to cover the trial, various other reporters and gay people interested in the trial did openly discuss their belief that Walker is gay. The only evidence anyone offered, beyond the realm of ordinary rumor, was the claim that a third party had told them that they had seen Walker at a gathering of a local gay legal group.

Some people also speculated that Walker, who is chief judge of the U.S. District Court for the Northern District of California, may have had a hand in designating himself as the judge in the Proposition 8 case. There are 28 judges in that district, and judges are assigned cases randomly by a computer at the moment a complaint is filed. According to the January issue of California Lawyer magazine, the computer assigned Walker’s name to Perry v. Schwarzenegger at the moment an attorney on the legal team challenging Proposition 8 filed the complaint. Prior to and even after that moment, the legal team had taken great pains to keep their lawsuit a secret until they could hold a press conference announcing it.

U.S. Tax Court registers pro-trans decision

A ruling this week by the U.S. Tax Court held that a Massachusetts woman should be permitted to deduct the medical costs associated with her transition (male to female) for the purposes of filing federal income tax returns—a ruling that could have significant implications for transgender people.

glad_logoA ruling this week by the U.S. Tax Court held that a Massachusetts woman should be permitted to deduct the medical costs associated with her transition (male to female) for the purposes of filing federal income tax returns—a ruling that could have significant implications for transgender people.

Rhiannon O’Donnabhain, 65, sued the Internal Revenue Service (IRS) when the federal tax agency denied a deduction of $5,000 for approximately $25,000 in medical expenses, including hormone therapy, sex reassignment surgery (SRS), and breast augmentation.

The IRS contended that that the treatments were “cosmetic” and not necessary medical care for Gender Identity Disorder (GID), a diagnosis required before therapy and surgery.

But, in an 11 to 5 decision, the tax court disagreed.

In its February 2 ruling in O’Donnabhain v. Commissioner of Internal Revenue, the tax court ruled that GID is a “disease” within the meaning of the tax code. The court said the IRS’s claim that all the treatments were “cosmetic” was “at best a superficial characterization of the circumstances that is thoroughly rebutted by medical evidence.” The court said that the IRS must consider sex reassignment surgery in the same manner, for example, as an appendectomy or even heart surgery.

But the court did agree with the IRS that breast enhancement could be considered “cosmetic” and thereby “excluded from the deduction of medical care” under federal tax code because she achieved augmentation through hormone treatments.

The U.S. Tax Court is a federal court with national jurisdiction that hears cases on a wide range of income tax claims.

Attorneys for the Boston-based legal organization Gay & Lesbian Advocates & Defenders (GLAD), the lead counsel for the petitioner, said the decision could affect thousands of people a year who undergo similar medical procedures.

The American Gay and Lesbian Medical Association estimated that between 1,600 to 2,000 people undergo SRS in the United States each year.

During a telephone press conference this week, Karen Loewy, a GLAD senior staff attorney, said the court’s decision established “narrowly” an “important legal principle” that “under the tax code, expenses incurred for the course of care for GID are deductible. She said “more broadly, the decision recognizes that there is a legitimacy for this medical condition that cannot be dismissed out of hand.”

“It’s incredibly big to have a statewide court setting a national precedent. This is the first time a court that has jurisdiction nationally has reached this conclusion.”

Born a biological male, O’Donnabhain provided highly personal testimony during her trial in Boston in July 2007, detailing an experience of dissonance between her biological sex and gender identity, starting as early as age 8. O’Donnabhain said she felt like “a female trapped in a male body.”

After decades of suffering and struggling with GID, O’Donnabhain sought medical help, undertaking a course of professionally prescribed treatment that included an SRS in 2001. O’Donnabhain’s health care providers testified that the treatment was critical to her mental health and ability to function more fully in society.

“The evidence amply supports the conclusions that petitioner suffered from severe GID, that GID is a well-recognized and serious medical disorder, and that hormone therapy and sex reassignment surgery are considered appropriate and effective treatments for GID by psychiatrists and other mental health professionals who are knowledgeable concerning the condition,” stated the court ruling.

Reacting to the decision, O’Donnabhain said, “I am overjoyed, not only for me, but also for other transgender people. We deserve respect, equal treatment for our medical care, and treatment by our government.”

Transgender-rights advocates voiced praise for the court’s ruling, too.

“This is a significant ruling,” said Meghan Stabler of Houston, Texas, who serves on the board of directors for the Human Rights Campaign, “not so much for the medical diagnosis but certainly from the coverage perspective.” Stabler said managers of private “health care plans and insurers always pointed to [treatment procedures] as elective and cosmetic. Now at least we have a point of reference to show where the federal government says these are necessary items, covered and deductible to a point.”

Transgender advocate and educator Joanne Herman of Boston said she hopes the decision will “bring us closer to having health plans provide coverage.”

“In the near term, the decision will help only a few trans people because most are under- or unemployed and do not have the money to pay for surgery in the first place,” said Herman. For them, she added, “whether it is deductible or not is fairly moot. The big help for trans people will come when it is covered by insurance. Therefore, the main importance of this decision is that IRS acceptance of surgery as medically necessary makes it harder for insurance companies to not cover it.”

Fed budget numbers fall short but LGBT leaders fall silent

President Obama’s proposed budget for fiscal year 2011 isn’t anywhere near as much as gay and AIDS groups had sought, but the consensus seems to be that modest increases—and in some places no increases, are laudable in the current economy.

dollar_signPresident Obama’s proposed budget for fiscal year 2011 isn’t anywhere near as much as gay and AIDS groups had sought, but there are few complaints. The consensus seems to be that modest increases—and in some places no increases—however insufficient, are laudable in the current miserable economy.

The Human Rights Campaign criticized the budget, released February 1, because it “does not provide the increases that HIV/AIDS programs need to overcome years of underfunding, a continuing epidemic, and severe reductions in state programs.” But overall, said the HRC statement, the president’s budget “still commits more dollars for a number of HIV/AIDS prevention and treatment programs, supports the new hate crimes law with funds for enforcement and education efforts, and uses scarce federal resources to support evidence-based sex education instead of disproven abstinence-only programs.”

In releasing its proposed budget for FY 11, the Obama administration prepared a two-page statement that highlights the administration’s proposed spending “to support the needs of the LGBT community.”

The summary notes an “11 percent increase in funding to the Department of Justice’s Civil Rights Division” –an increase the statement says will help with implementation of the Matthew Shepard-James Byrd Jr. Hate Crimes Prevention Act. The president signed the hate crimes act last October.

The statement also expresses support—but no numbers—for the Federal Employee Domestic Partner Benefits Act, a bill that would—if passed—provide gay federal employees and their domestic partners with the same benefits currently enjoyed by straight federal employees and their married spouses. A Congressional Budget Office report last December estimated HR 2517 would add only about $24 million to the $3.8 trillion outlays proposed for FY 11.

The funds, if allocated, would come under the Federal Employee Health Benefits program.

Like previous administrations, the Obama administration relies on some smoke-and-mirrors when it comes to presenting its budget to the public, including the LGBT public. For instance, under a heading of “Support a Fair and Accurate 2010 Census,” the summary discusses at length its plan this year to count the number of same-sex couples who identify themselves as “married.” In previous Census surveys, such couples have been “re-coded” as unmarried partners or even as a heterosexual couple. Then the summary notes the federal government will spend $1.3 billion in FY 11. This is accurate, if one is talking about all the expenditures involved with the Census survey in FY 11; but, the LGBT-specific costs will be a decidedly smaller number.

Of the seven points included in the LGBT budget summary, two could have gone in pretty much any budget summary. One talks about expanding employment-based retirement plans generally, the other talks about helping more states offer paid family leave, and neither mentions any LGBT applications specifically.

The summary also includes its entire HIV/AIDS budget under the LGBT summary. Men having sex with men do account for the largest percentage (48 percent) of people with HIV (more than 1 million); and they do account for more than half (53 percent) of new infections (almost 58,000) each year.

The summary indicates the budget will add 10,000 more people with HIV and low incomes under the Ryan White CARE Act and that it will continue a five-year $45 million AIDS prevention campaign.

But what it doesn’t say is that groups such as the Communities Advocating Emergency AIDS Relief (CAEAR) Coalition urged much higher numbers than the budget proposes. For instance, the budget calls for about a four percent increase ($31 million) for the Centers for Disease Control and Prevention’s work in prevention and surveillance of HIV infection and disease. The Coalition has pushed for an $878 million increase.

The administration’s budget calls for $2.3 billion on Ryan White CARE Act programs, where the Coalition urged $3 billion.

The proposed FY 11 budget is “below the community’s request and well below what is needed,” said Ronald Johnson, deputy director of the AIDS Action Council. “But we have to put in the context of the economic realities and the very hard decisions the president and his administration had to make. In that context, we think the increase, as modest as it may be in terms of overall needs, is noteworthy and reflects a commitment” by the Obama administration to fighting AIDS.

Others agreed.

“We think that President Obama has some very difficult decisions to make in an abysmal economic climate,” said Nathan Schaefer, director of public policy for New York City’s Gay Men’s Health Crisis. “And though the budget proposal does not address all the needs, to see some modest increase has been very encouraging. It’s a step in the right direction.”

In concrete terms, the administration’s budget is about $40 million higher on Ryan White CARE Act funds than the current fiscal year’s numbers.

There was some expression of worry and disappointment nonetheless.

Carl Schmid, deputy director of The AIDS Institute, told the Presidential Advisory Council on HIV/AIDS (PACHA) February 2, during its first meeting with newly sworn in members, that the budget numbers proposed for HIV are “far from what is needed.” In particular, he noted that there are people on the waiting list for AIDS Drug Assistance Program—including 143 people in Kentucky, 64 in Utah, and 154 in eight other states.

Schmid noted that the budget proposal calls for a $20 million increase for the AIDS Drug Assistance Program (ADAP), which helps ensure that people with HIV can afford life-sustaining medications. The $20 million increase in ADAP, said Schmid, “is far from the increase of $370 million for ADAP that is needed.”

Nancy Bernstine, executive director of the National AIDS Housing Coalition, told the Council that the need for housing for people with HIV and low incomes is a “matter of urgency” and that housing alternatives are simply “not available.”

According to The AIDS Institute, the president’s budget includes only a four percent increase ($31 million) for HIV prevention at the U.S. Centers for Disease Control and Prevention.

“This is far from the increase of $878 million the CDC estimates that is needed to bring down the number of new infections,” said Schmid.

But even LGBT community institutions on the frontlines of the battle against HIV and to support “the needs of the LGBT community” found it hard to criticize the president’s budget. In part, it is a willingness to look at the LGBT-related budget items in context of the nation’s overall economic woes, and in part it is a lingering memory of budget disappointments during the administration of President George W. Bush.

Darrel Cummings, chief of staff for the L.A. Gay & Lesbian Center, said their experience with funding from the Obama administration represents a stark improvement over the Bush administration.

“It’s night and day when compared to the previous administration,” said Cummings, “and I would expect this to continue regardless of the impact of the ‘freeze’.” President Obama announced during his State of the Union address that he would propose a three-year freeze on discretionary spending beginning in 2011.

Gates, Mullen ready to repeal DADT, but GOP ready to fight

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen told a Senate committee they have appointed a high-level working group to report on how the military can adapt should Congress choose to repeal “Don’t Ask, Don’t Tell.”

Chairman of the Joint Chiefs of Staff Adm. Mike Mullen responds to questions during testimony with Under Secretary of Defense Comptroller Robert Hale, Secretary of Defense Robert M. Gates, before the Senate Armed Services Committee, in Washington, D.C., Feb. 2, 2010.  DOD photo by Cherie Cullen (released)
Chairman of the Joint Chiefs of Staff Adm. Mike Mullen responds to questions during testimony with Under Secretary of Defense Comptroller Robert Hale, Secretary of Defense Robert M. Gates, before the Senate Armed Services Committee, in Washington, D.C., Feb. 2, 2010. DOD photo by Cherie Cullen (released)

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen told a Senate committee Tuesday that they have appointed a high-level working group to report, by the end of 2010, on how the military can adapt should Congress choose to repeal the “Don’t Ask, Don’t Tell” policy.

“Simultaneous with launching this process,” said Gates, “I have also directed the Department to quickly review the regulations used to implement the current Don’t Ask, Don’t Tell law and, within 45 days, present to me recommended changes to those regulations that, within existing law, will enforce this policy in a more humane and fair manner.”

In remarks that appeared to stun and anger Republican conservatives on the Senate Armed Services Committee, Mullen said he personally believes repeal of the military’s policy excluding openly gay service members is “the right thing to do.”

But the Committee’s minority leader John McCain and most of his Republican colleagues made clear they were unhappy to hear Gates and Mullen were preparing to follow orders for repealing the policy, signaling that another bruising political battle in Congress over the issue is almost a certainty.

President Obama promised during his 2008 presidential campaign that he would seek repeal of the policy and he and members of his administration met with Pentagon officials on some number of occasions since taking office to discuss how and when this might be done. Then, last week, the president used the high-profile bully pulpit of his State of the Union address to move the promise into the realm of action.

Gates told the Senate committee that the working group would be headed by DOD General Counsel Jeh Johnson and Commander of the U.S. Army in Europe General Carter Ham.

The group’s mandate, Gates said, is to “thoroughly, objectively, and methodically examine all aspects” associated with “properly implementing a repeal” of the policy. The working group will consider the effects of a repeal on the military on the armed forces, what “policies and regulations” that may have to change, and what impact a change in the law might have, if any, on “military effectiveness,” including and “unit cohesion” recruitment, retention, and “overall performance of the force.”

“My personal belief,” said Mullen, “is that allowing gays and lesbians to serve openly would be the right thing to do.”

“I have served with homosexuals since 1968,” Mullen said, adding that the current policy creates a dissonance with the integrity of the military as an institution.

“Putting individuals in a position where they wonder ‘Is today going to be the day?’ and devaluing them in that regard, just is inconsistent with us as an institution,” he said.

Senator Jeff Sessions (R-Ala.) criticized Gates and Mullen for expressing their views in support of repealing the policy, saying it would create “undue command influence” on the working committee to return with a recommendation that conforms to that view.

“I hope you’ll recognize that Congress will have to make the decision and don’t use your power to influence the discussion or reevaluation of the issue,” said Sessions.

Mullen shot back, politely, that “it’s not about command influence, but leadership, and I take that very seriously.”

Repealing the 16-year-old “Don’t Ask, Don’t Tell” (DADT) policy has been a long-standing goal among the nation’s leading LGBT civil rights organizations and reaction to the Gates and Mullen presentation was met with a uniformly positive response.

“We strongly applaud Secretary Gates supporting the President’s view that DADT needs to go,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which seeks to provide information and assistance to service members threatened or ejected by the policy. “We also strongly applaud Chairman Mullen who unambiguously personally supported gays and lesbians serving openly. The top military brass of the United States just laid out a roadmap for full repeal.”

Sarvis said his group will “welcome the new direction coming out of the Pentagon over the next 45 days.” He said he expects that could focus on reducing the number of DADT discharges in the near future.

Gates indicated that one key change that could come about through the 45-day recommendations is a change in how the policy is enforced. He said it may be the service could require more than just an allegation from a third-party in order to launch an investigation. Another possible change, he said, could be to require that discharges under the policy be done only by flag officers, such as admirals and generals, rather than lower ranking officers.

“Today is a historic step forward in repealing a shameful law that has harmed the military, discharged thousands of talented and patriotic Americans and prevented thousands more from serving their country,” said Joe Solmonese, president of the Human Rights Campaign.

Solmonese also lauded the president for his leadership role.

“We acknowledge and appreciate President Obama’s leadership in bringing the military into line with his ideal,” said Solmonese. “Make no mistake—this would not have happened without his insistence. And we’ll need more of that commitment in the months ahead.”

HRC recently launched a lift-the-ban initiative, called “Voices of Honor,” to organize veterans in key states that may lobby for critical to votes in the House and Senate to repeal Don’t Ask, Don’t Tell.

Another group, the Courage Campaign, announced it had collected nearly half a million letters addressed to the president, members of Congress, and the Pentagon, calling for repeal.

“‘Don’t Ask, Don’t Tell’ contradicts the military honor code requiring those in uniform to tell the truth,” said Lt. Dan Choi, a spokesperson for the Courage Campaign. A West Point alumnus, Choi is a high-profile Arabic language expert whose discharge is currently pending under “Don’t Ask, Don’t Tell.”

“Don’t Ask, Don’t Tell” was passed by Congress in 1993 and signed into law by President Bill Clinton and mandates the discharge of openly gay, lesbian, or bisexual service members. Nearly 14,000 service members have been fired for forced out under the law since its implementation in 1994, including 800 people with specialties such as Arabic language expertise, according the SLDN.

SLDN has pointed to a trend boding well for the repeal of “Don’t Ask, Don’t Tell.” Discharges for the four services – Army, Air Force, Navy and Marines—under the policy declined in 2009—down a third from the year before. “Don’t Ask, Don’t Tell” discharges totaled 428 in 2009 compared to 619 in 2008, according to data provided by the Department of Defense to Capitol Hill.

“It’s very good news that discharges continue to drop during a time of two wars, particularly in 2009,” said Sarvis. “But it is 428 too many. We need to see the number go to zero and will continue to urge Congress and the White House to pass full repeal in 2010 through the defense authorization bill to end this law once and for all.”

Public opinion has changed, too, with the American people’s increasing support of allowing gays to serve in the military. A Washington Post/ABC News poll conducted in July 2008 found that 75 percent of Americans believe openly lesbian and gay citizens should be able to serve in the U.S. military.

The Gates and Mullen testimony is expected to boost repeal efforts already underway on Capitol Hill. The Military Readiness Enhancement, a bill introduced to lift the ban by Rep. Patrick J. Murphy (D-Pa.), an Iraqi war veteran, now has 187 House Sponsors—just 31votes shy of the 218 votes to assure repeal in the House. The momentum in the Senate, where the Democratic majority recently lost a critical seat to Republicans, is less positive. No bill has yet been introduced there.