DADT repeal clears two major Congressional hurdles

The U.S. House voted 234 to 194 Thursday night to approve a compromise amendment that many believe will—with some conditions—eventually lead to the end of the military’s policy of discharging gay servicemembers.

Carl Levin
Carl Levin

The U.S. House voted 234 to 194 Thursday night to approve a compromise amendment that many believe will—with some conditions—eventually lead to the end of the military’s policy of discharging gay servicemembers.

The vote was the second major victory of the day for proponents of repeal. The Senate Armed Services Committee approved a similar amendment just hours earlier by a vote of 16 to 12.

The fight is hardly over—at least two Republican senators have said they would support a filibuster over the underlying defense authorization bill in order to stop repeal of the 17-year-old Don’t Ask, Don’t Tell law. And, both chambers will have to vote again after a conference committee works out the differences between the two versions of the defense funding bill.

But for now, LGBT activists are celebrating a pair of dramatic and hard won victories against a policy which has led to the discharge of more than 13,000 servicemembers so far.

“The votes in the Senate Committee and on the House floor to repeal ‘Don’t Ask, Don’t Tell’ constitute one of the most important advances in our fight against prejudice based on sexual orientation,” said Rep. Barney Frank (D-Mass.), a key Democratic leader involved in that fight. “A very few years from now, it will be clear that the fears expressed by our opponents’ arguments were totally without foundation. I particularly want to express my admiration and great appreciation to Speaker Nancy Pelosi, Senate Armed Services Committee Chairman Carl Levin, and Representative Patrick Murphy, for their extraordinary leadership in bringing this about.”

Murphy (D-Penn.) was the chief sponsor of the measure to repeal Don’t Ask, Don’t Tell (DADT) and pressed vigorously for a vote even when the Pentagon pushed vigorously for a delay. And Pelosi promised support for the measure and to let the measure to the floor, even as some reports claimed that conservative Democrats were beginning to bail out for fear of repercussions during the mid-term elections.

The repeal measure that passed the House floor vote and the Senate committee was a compromise worked out during a meeting with White House officials on Monday. The compromise calls for repeal of the DADT federal law to take place only after two things occur: 1) the Secretary of Defense receives the implementation report he has asked for by December 1, and 2) “The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating” that three additional things have been accomplished. Those three things are: 1) that the three men have “considered the recommendations contained in the report and the report’s proposed plan of action,” 2) the DOD has “prepared the necessary policies and regulations to exercise” repeal, and 3) that the implementation of those policies and regulations is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

While most supporters of repeal in the LGBT community praised the compromise and applauded its securing a vote in Congress this year, there were critics, too. They said the measure does not guarantee that the military will stop discharging gays. In fact, many supporters of repeal acknowledged as much during debate Thursday.

“It doesn’t repeal Don’t Ask, Don’t Tell,” said Speaker Pelosi during a press conference Thursday. “It defers to when that [DOD] report comes forth and then repeals Don’t Ask, Don’t Tell.”

And Joint Chiefs of Staff Chairman Admiral Mike Mullen, who earlier this year told the Senate Armed Services Committee that repeal of DADT is “the right thing to do,” told a town hall meeting of servicemembers at a Colorado air base Wednesday that the compromise’s provision for certification means, “to certify whether we should move ahead with that change, even if the law were to repeal it.”

But for now, Congressional repeal of the DADT law is underway. The repeal measure reached the floor of the House at about 8:30 Thursday evening, after nearly 10 hours of off and on debate. The time allotted to debate of the Murphy Amendment was only 10 minutes, so Republicans used their time allotment during consideration of other amendments to express their vehement opposition to the Murphy Amendment.

The common themes among opponents who spoke—all but two of whom were Republicans—were that Democrats were trying to rush the issue, renege on an agreement to let the Pentagon study how best to implement repeal, and ignore the views of servicemembers. Some, like Rep. Mike Pence (R-Ind.), said the amendment was “advancing a liberal political agenda.” Many said that Congress shouldn’t vote until the Pentagon had worked out procedures around such matters as sleeping quarters and the extension of benefits to same-sex spouses.

Rep. Frank went to the floor early in the day to say that, if he had introduced an amendment to exempt gays from a military draft, these same opponents would be criticizing him for seeking “special rights” for gays.

And longtime civil rights activist Rep. John Lewis (D-Ga.) made an impassioned comparison between DADT and the early segregation of troops by race.

“The military helped end segregation based on race,” said Lewis, “and can help end Don’t Ask Don’t Tell.” The federal law excluding gays from the military, he said, “is an affront to human dignity.”

“Discrimination is wrong and we must end it,” said Lewis.

In praising the work to pass the repeal amendment, Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, also emphasized that “it doesn’t end the discharges.”

“The repeal amendment allowed for Congress to act while respecting the ongoing work by the Pentagon on how to implement open service for lesbian and gay service members,” said Sarvis. “Nothing would happen until the Pentagon Working Group completes its report and the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the President certifies repeal.”

But Servicemembers United Executive Director Alexander Nicholson said the two victories Thursday demonstrated “real momentum in the battle to finally rid the United States Code of the outdated” DADT law.

“All of us who have served under ‘Don’t Ask, Don’t Tell’ and who have been impacted by this law,” said Nicholson, who was himself discharged under the law, “will remember this day as the beginning of the end for ‘Don’t Ask, Don’t Tell.’”

Oddly, more than an hour after the DADT repeal amendment had passed the House and the chamber appeared to be almost empty, Rep. Louie Gohmert (R-Texas) continued to debate the issue. Gohmert, who is prone to bombastic rants, said “we’ve accepted the loss of morality” by allowing gays in the military and, speaking in almost a whisper, he said the House has “betrayed” servicemembers and “it breaks my heart.”

“I’m so sorry that this body broke its word for political gain,” he said.

The White House issued a statement from President Obama about an hour after passage, too.

“I have long advocated that we repeal ‘Don’t Ask Don’t Tell’,” said Obama, who brought it up in his State of the Union speech in January but did not mention it in his message to Congress this week about the DOD authorization bill.

“This legislation,” he said, “will help make our Armed Forces even stronger and more inclusive by allowing gay and lesbian soldiers to serve honestly and with integrity.”

The full Senate will take up the DOD authorization bill sometime after the Memorial Day recess. There, Republicans are threatening a filibuster.

Mass. likens DOMA to Colorado initiative that Supreme Court struck down

For the second time in three weeks, a federal judge in Boston heard arguments in a lawsuit that asks the court to strike down a significant part of the federal Defense of Marriage Act (DOMA).

Maura Healey
Maura Healey

For the second time in three weeks, a federal judge in Boston heard arguments in a lawsuit that asks the court to strike down a significant part of the federal Defense of Marriage Act (DOMA).

In Commonwealth of Massachusetts v. Health and Human Services, U.S. District Court Judge Joseph Tauro is considering whether the federal law’s definition of marriage—one man and one woman—violates state sovereignty when it comes to marriage licensing. On May 6, in Gill v. Office of Personnel Management, Gay & Lesbian Advocates & Defenders, a gay legal group, asked Tauro to consider whether DOMA violates the right of eight same-sex couples to equal protection of the law.

Maura T. Healey, chief of the Massachusetts Attorney General’s Civil Rights Division, told Judge Tauro that Section 3 of DOMA—the section that limits the definition of marriage for federal benefits to straight couples—violates the state’s constitutional right, under the federal constitution, to sovereign authority to define and regulate the marital status of its residents.

DOMA, said Healey, is an “animus-based national marriage law” that intrudes on core state authority and “forces the state to discriminate against its own citizens.” She likened DOMA to the Colorado Amendment 2 initiative that was struck down by the U.S. Supreme Court in 1996 with its Romer v. Evans decision. Amendment 2 said no law in the state of Colorado could prohibit discrimination based on sexual orientation.

“DOMA, like Amendment 2,” said Healey, “is a “wholesale, unprecedented denial of protection for a group of people.”

“Imagine the federal government giving money for the construction of schools and telling us that we can build them for white children but not for black children,” said Healey. Or imagine, she said, that the federal government would give money to subsidize health care for men, but not for women.

“That’s what DOMA does to Massachusetts,” said Healey. “It gives us funding but tells us to treat one category of married people differently than another. It forces us to violate equal protection.”

As GLAD did in Gill v. Office of Personnel Management, Healey urged Tauro to apply heightened scrutiny in considering whether the federal government had any legitimate need for DOMA. Heightened scrutiny would require the government to come up with a fairly significant reason for treating gay couples differently under the law.

But Healey told Tauro that, even if he uses only the lowest level of review—simple rational basis—the government still cannot identify a reason to treat gay couples differently, other than animus. She noted the federal government has “disavowed” the reasons Congress offered in 1996 when it passed the law. And she said it has no evidence to support the reasons it offers now.

Christopher Hall, the attorney arguing on behalf of the federal government, repeated at least twice that the current administration “does not support DOMA.” He said it believes the law is discriminatory and that it should be repealed. But, he said, federal attorneys “have an obligation to defend it,” nonetheless.

Hall said the government’s two key points are: 1) Congress should be able to control the meaning of terms used in its own statutes, and 2) that Congress should be able to control how federal money is allocated.

When Judge Tauro echoed Healey’s contention that marriage has always been left to the states to define and regulate, Hall disagreed. He the federal government has been involved in defining marriage for immigration laws.

He said DOMA does not, as Healey contended, violate the 10th amendment. The 10th amendment says “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Hall said DOMA does not prevent any state from defining marriage or who may marry.” It simply defines marriage “for the limited purposes of federal benefits,” said Hall.

Tauro interrupted Hall at one point to note that his arguments were “interesting and valuable.”

“But we’re here dealing with something basic,” said Tauro. “Are these people married or not?”

“They are married in the state,” said Hall.

“But not for federal purposes?” asked Tauro.

“They’re not eligible for federal benefits,” said Hall.

Tauro prompted Hall to respond to Healey’s claim that DOMA was coercing Massachusetts into discriminating against gay couples by the threat of losing billions of dollars in federal funds in Medicaid (hence the identification of HHS as a defendant).

Hall said DOMA does nothing different than what the government did in 1984 when it conditioned federal funds for highway construction on each state adopting a federal drinking age minimum of 21.

At the end of the 90-minute argument, Tauro said he would issue his ruling “shortly.”

There was not as big a crowd May 26 for the Commonwealth’s case against DOMA as there was May 6 for GLAD’s case. Attorney Mary Bonauto—who has won enormous recognition and publicity for winning the landmark decision in 2003 that enabled gay couples to start receiving marriage licenses in Massachusetts in 2004—argued GLAD’s case against DOMA. And the federal government’s defense was delivered by the somewhat notorious Department of Justice official Scott Simpson. Simpson has been a key figure in the Obama DOJ’s controversial briefs defending DOMA and saying it was not discriminatory against gays.

But both the state’s lawsuit and that of GLAD are very precise attacks against DOMA—targeting just Section 3—and most legal observers believe both cases could very well go as high as the U.S. Supreme Court for resolution.

Attorney General Martha Coakley, who attended the oral argument Wednesday and sat in the public section, said, in her office’s original briefs on the case, that more than 16,000 same-sex couples have obtained marriage licenses in Massachusetts since May 2004, when the state began allowing gay couples to obtain marriage licenses the same as heterosexual couples.

Lesbian U.S. Attorney Nominee Approved

The full Senate on Friday, May 28 unanimously confirmed Laura Duffy as U.S. Attorney for the Southern District of California, making her the second openly lesbian or gay U.S. attorney. Jenny Durkan, the first, was confirmed in September as U.S. attorney for the Western District of Washington.

[Updated: 5/28/2010] The full Senate on Friday, May 28 unanimously confirmed Laura Duffy as U.S. Attorney for the Southern District of California, making her the second openly lesbian or gay U.S. attorney. Jenny Durkan, the first, was confirmed in September as U.S. attorney for the Western District of Washington.

Duffy, nominated by President Obama on February 24, has worked in the U.S. Attorney’s Office for the Southern District of California since 1997, serving as Deputy Chief, General Crimes Section and Assistant U.S. Attorney – Narcotics Enforcement Section. Prior to that, she spent four years in the Criminal Division of the Department of Justice and two years in law clerkships, for a private firm and for the Public Defender’s Office of Douglas County, Nebraska.

In her most high-profile cases, she led or co-led prosecution teams that indicted all of the leaders of a major drug trafficking cartel, the Arellano-Félix Organization, and led to the arrest, extradition, and/or prosecution of all but one.

The Southern District office, with 120 Assistant U.S. Attorneys, three full-time and 38 part-time Special Assistant U.S. Attorneys, and 168 support personnel, is the sixth largest in the country, and handles one of the heaviest caseloads. The District is also “affected substantially by its proximity to Mexico,” according to its Web site.

Duffy’s Senate Judiciary Committee questionnaire states that her current department within the District handles cases most often related to immigration offenses, as well as narcotics offenses, fraud, bank robbery, assaults on federal officers, and crimes involving child exploitation and child pornography.

Duffy owns a 45 percent stake in the Aveda beauty salon her spouse owns and operates in San Diego, reported MainJustice.com, based on her Office of Government Ethics financial disclosure form.

Duffy graduated magna cum laude from Creighton University School of Law. She has won numerous awards and commendations from the Drug Enforcement Administration (DEA) and other federal law enforcement groups.

DADT repeal likely on House floor Friday; picks up critical senate support

The Murphy Amendment seeking repeal of the military’s Don’t Ask Don’t Tell policy is slated to come up near the end of the House’s consideration this week of the annual defense authorization bill.

Patrick Murphy
Patrick Murphy

The Murphy Amendment seeking repeal of the military’s Don’t Ask Don’t Tell policy is slated to come up near the end of the House’s consideration this week of the annual defense authorization bill.

The House Rules Committee released its plan for the defense bill late Wednesday night. That plan shows the committee approved 82 of the 193 amendments submitted for consideration on the bill and calls for the 82 amendments to be taken in order. The amendment submitted by Rep. Patrick Murphy (D-Penn.) is identified as Number 79.

There is a provision in the Rules report for an amendment to be taken out of order. For that to happen, Rep. Ike Skelton (D-Missouri) would have to give the presiding chairman 30 minutes advance notice.

The House floor action on a jobs bill was, as of Wednesday night, scheduled to resume on Thursday morning. According to one senior House aide said that will likely push back consideration of the defense funding bill until later in the day on Thursday. And for that reason, said the aide, consideration of the Murphy Amendment will not likely begin until sometime Friday, May 28.

In other breaking news late Wednesday, conservative Democratic Senator Robert Byrd of West Virginia has apparently issued a statement saying he will vote for the Murphy Amendment on Don’t Ask Don’t Tell. In a press release on plain paper, Byrd is quoted as saying he worked with the amendment’s supporters “to include a provision in the proposed compromise amendment that would delay the repeal…for 60 days after receipt” of the Pentagon study group report, which is due December 1.

“With these changes,” the press release quotes Byrd, “I will support the amendment….”

The language of the amendment printed by the House Rules committee calls for “a 60-day period after certification before the repeal took effect.”

Byrd was one of six senators that supporters of the repeal identified as critical to passage of repeal. Another, Ben Nelson (D-Nebraska) also said Wednesday he would support the repeal amendment. A third, Republican Scott Brown of Massachusetts, said Wednesday he would vote no; but the statewide gay political group MassEquality has stepped up its efforts to persuade Brown to change his mind, asking state residents to contact Brown again and urge his reconsideration. Virginia Democrat Jim Webb has also indicated he will vote against the amendment and Bill Nelson of Florida will support it. No word yet on Evan Bayh (D-Indiana) concerning the compromise amendment.

DADT repeal likely on House floor Friday

The House Rules Committee was back in session Wednesday night, addressing 193 amendments submitted for consideration during floor action on the annual defense authorization bill. As of 9 p.m. Wednesday, the committee had not yet taken up Rep. Patrick Murphy’s compromise amendment concerning repeal of “Don’t Ask Don’t Tell.”

The House Rules Committee was back in session Wednesday night, addressing 193 amendments submitted for consideration during floor action on the annual defense authorization bill. As of 9 p.m. Wednesday, the committee had not yet taken up Rep. Patrick Murphy’s compromise amendment concerning repeal of “Don’t Ask Don’t Tell.”

Meanwhile, the House floor action on a jobs bill was, as of Wednesday night, was scheduled to resume on Thursday morning. According to one senior House aide said that will push back consideration of the defense funding bill until later in the day on Thursday. And for that reason, said the aide, consideration of the Murphy Amendment will not likely begin until sometime Friday, May 28.

Compromise DADT repeal poised for votes now in Congress

A measure to repeal the 16-year-old federal law excluding openly gay people from the military started up the Congressional ladder this week—with a reluctant nod from the White House and a controversial rewrite.

Patrick Murphy
Patrick Murphy

A measure to repeal the 16-year-old federal law excluding openly gay people from the military started up the Congressional ladder this week—with a reluctant nod from the White House and a controversial rewrite. The increasing pressure for action on repeal stepped up, too, with a protester once again interrupting a speech by President Obama—this time in San Francisco on Tuesday night—to demand action.

Rep. Patrick Murphy (D-Penn.) submitted an amendment to the House Rules Committee Tuesday using language that was agreed upon during a meeting at the White House Monday.

Only one person who participated in that meeting has identified himself—Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network (SLDN).

The Human Rights Campaign and Servicemembers United, a gay veterans group, also had at least one representative at the meeting, but neither organization would identify who that was.

The White House declined to identify or confirm any participants, but at least one source familiar with the meeting said it included White House of Chief of Staff Rahm Emanuel’s deputy Jim Messina. That source provided the information only on the condition of anonymity.

CNN reported that “top congressional Democrats” also participated in the meeting. A press release from SLDN indicated that DOD officials helped craft the amendment.

But on MSNBC’s Rachel Maddow Show Tuesday night, Murphy took credit for the language, evening calling it the “Murphy Amendment.”

The amendment calls for repeal to take place only after two things occur: 1) the Secretary of Defense receives the implementation report he has asked for by December 1, and 2) “The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating” that three additional things have been accomplished. Those three things are: 1) that the three men have “considered the recommendations contained in the report and the report’s proposed plan of action,” 2) the DOD has “prepared the necessary policies and regulations to exercise” repeal, and 3) that the implementation of those policies and regulations is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

HRC, SLDN, and Servicemembers United all issued statements Monday praising the compromise.

“Today’s announcement paves the path to fulfill the President’s call to end ‘Don’t Ask, Don’t Tell’ this year and puts us one step closer to removing this stain from the laws of our nation,” said HRC President Joe Solmonese in a statement. Solmonese did not return this reporter’s call for an interview.

The “announcement” Solmonese was referring to was a letter, from Peter Orszag, director of the Office of Management and Budget to Murphy and the Senate sponsor of a bill to repeal Don’t Ask Don’t Tell, Joe Lieberman. Orszag’s letter, dated May 24, said the administration believes the “ideal scenario” would have DOD complete its study on how to implement repeal “before the Congress takes legislative action.”

But given that “Congress has chosen to move forward with legislation now,” wrote Orszag, the Administration is indicating it believes the proposed amendment “meets the concerns” raised by the DOD.

SLDN Executive Director Sarvis called the announcement a “dramatic breakthrough in dismantling ‘Don’t Ask, Don’t Tell.’”

Servicemembers Untied Executive Director Alexander Nicholson called the announcement “long awaited, much needed, and immensely helpful….” Nicholson is a former U.S. Army interrogator who was discharged under DADT.

Rep. Barney Frank (D-Mass.) and Rep. Jared Polis (D-Colo.), openly gay members of Congress, said they support the compromise amendment.

In a phone interview Tuesday evening, Frank called it a “very good solution” that will “get rid of Don’t Ask Don’t Tell.”

Rep. Tammy Baldwin did not return a call for comment, but her office issued a statement saying that she expects the House to repeal DADT this week and that it will be “one more step on the patch to full civil rights for all LGBT Americans.”

But some activists seem uneasy with the compromise.

Richard Socarides, a former White House aide to President Clinton—albeit after the adoption of Don’t Ask Don’t Tell—said “it doesn’t really provide for repeal of law until some uncertain date in the future.”

“There’s no affirmative statement that the government is getting out of the business of discrimination against gay people…and actual repeal,” he said “is subject to a future discretionary finding by the president and the Pentagon.”

Pam Spaulding, whose political blog pamshouseblend.com has won considerable respect among political activists, said the “subjective nature of the final sign off for certification places the decision in the hands of those concerned about the views of the anti-gay quarters of the military versus those service members who are silenced about their lives under DADT.”

Criticism also came from the Los Angeles Times, which published an editorial in Tuesday’s paper saying the compromise is “laudable” and the “first real progress” toward repeal since the policy was established in 1993. But it also criticized the compromise, saying it “isn’t quite the outright rejection we’d like to see” of DADT.

When this reporter asked Rep. Frank whether he had any concerns about the conditions put on the repeal measure in the compromise language, he derided the question and anyone who would criticize the compromise. He said there would always be critics of whatever language is offered and that those critics “will always assume the worst” and “put the worst possible spin” on the measure. Frank also confirmed that he was not at Monday’s White House meeting.

Rep. Jared Polis will be at the House Rules committee meeting Wednesday afternoon (May 26). Polis is one of nine Democrats and four Republicans on the committee who decide which amendments can be brought up on the floor of the House during consideration of a bill. The Committee will also decide approximately when that amendment will come up during debate on the annual defense authorization bill –it could be as early as Thursday, or as late as Friday.

The Senate Armed Services Committee—meeting entirely in closed sessions—will debate the same compromise amendment this week, probably Thursday. The Committee’s debate and vote won’t be made public until after it completes the defense funding bill markup—sometime Friday.

Meanwhile, there has been considerable posturing on the issue in a wide variety of quarters.

House Republicans told reporters Tuesday that they plan to vigorously oppose the repeal measure and may even vote against the defense authorization bill if the repeal amendment is approved. Rep. Buck McKeon, ranking minority member on the House Armed Services Committee, issued a statement Tuesday criticizing supporters of repeal as “intent on rushing a vote to the floor because they fear the votes will not be there if they wait.”

Right-wing conservatives are upset at the White House’s announcement Monday. They say the compromise amendment is a “back-room deal” between President Obama and House Speaker Nancy Pelosi. Echoing McKeon’s words, Family Research Council President Tony Perkins said the deal is the Democrats’ way: “to get what they can now” before mid-term elections.

House Speaker Nancy Pelosi said at a speech in San Francisco last weekend that she feels “quite certain” that Don’t Ask Don’t Tell “will be a memory come Christmas.” And her audience, at a celebration of Harvey Milk Day in San Francisco, cheered wildly.

But President Obama said nothing about the policy on Saturday, as he delivered the commencement address at the U.S. Military Academy, West Point, receiving occasional polite applause. When Obama traveled to San Francisco Tuesday to speak at a fundraiser for Senator Barbara Boxer (D-Calif.), he was interrupted by a heckler, much the same as he was in Los Angeles at a fundraiser for Boxer on April 19.

According to a report from a journalist covering the event for the White House press pool, a man in the audience yelled out “Move faster on ‘Don’t Ask Don’t Tell.’”

Gay reporter Rex Wockner reported the heckler was GetEqual co-founder Kip Williams, who said he was “arrested, cited and released.”

Videotape of the event showed Obama, looking somewhat annoyed, saying the protester should buy a ticket to an event of someone who opposes repeal.

On the Rachel Maddow Show Tuesday night, Rep. Murphy said “The White House has been terrific” in supporting the measure.

A CNN poll released Tuesday indicated 78 percent of 1,023 adults surveyed May 21-23 (with a margin of error of plus/minus 3 points) said gays should be allowed to serve in the military. That was down three points from 2008, but up nine points from February of this year.

And an informal survey by the Gay & Lesbian Victory Fund of “some 20,000” readers of its new aggregator site, “Leadership SmartBrief,” said as of Wednesday, May 26, 71.1 percent of respondents said “Yes,” when asked “Should Congress return authority to the president and the Pentagon to create a policy on openly gay troops?” Another 18.7 percent said “No,” and 10.2 percent said they were “unsure.”

Keen News Service Podcast, 5/23/2010

Vets keep pressure on for DADT repeal

Leaders of gay civil rights groups and LGBT veterans organizations are optimistic about the next two-week time period, one that may well determine whether Congress moves forward this year to repeal the federal statute commonly referred to as “Don’t Ask, Don’t Tell,” that has banned openly gay people from the military for nearly 17 years.

But that is despite some disappointments.

Leaders of gay civil rights groups and LGBT veterans organizations are optimistic about the next two-week time period, one that may well determine whether Congress moves forward this year to repeal the federal statute commonly referred to as “Don’t Ask, Don’t Tell,” that has banned openly gay people from the military for nearly 17 years.

But that is despite some disappointments.

Some were disappointed last week when the White House sent to Congress its policy recommendations for the National Defense Authorization Act for Fiscal Year 2011 that did not include any request to repeal “Don’t Ask, Don’t Tell” (DADT). That added to the stinging disappointment a week earlier when the White House issued a statement saying, “implementation of any congressional repeal will be delayed until the DOD study of how best to implement that repeal is completed.” The statement was issued just hours after Associated Press reported that Defense Secretary Robert Gates had sent a letter to House Armed Services Committee Chairman Ike Skelton saying that he and Joint Chiefs of Staff Chairman Admiral Mike Mullen “strongly oppose any legislation that seeks to change this policy prior to the completion” of a Pentagon study, expected in December.

“It didn’t help,” said Aubrey Sarvis referring to the Gates letter. Sarvis, head of the Servicemembers Legal Defense Network, said the Gates letter may well have raised “concerns” for some members of Congress, nervous about taking a controversial vote in an election year. But Gates’ objections “didn’t take us down before the count,” he said.

“It [only] made the task more difficult.”

This week, repeal proponents lost the support of a key Democrat on the Senate Armed Forces Committee when Nebraska Senator Ben Nelson told the Washington Blade that he would vote against any repeal effort next week when the committee considers the defense authorization bill.

Nelson told the Blade that he wants “to follow with the advice and the suggestions of Secretary of Defense Gates to have the study that is underway right now before we make that final decision—because it’s not a question of ‘whether,’ it’s a question of ‘how.’”

But Nelson and other members of Congress are also facing intense lobbying from proponents of the repeal. ?Last week, the Human Rights Campaign and Servicemembers United, an organization of gay veterans, coordinated a two-day lobbying effort spearheaded by former LGBT military officers and enlisted personnel. SLDN and 60 other groups signed on as co-sponsors of the effort.

More than 350 veterans from over 40 states were in Washington, D.C., May 10 and 11 to lobby members of Congress as “a final push before the critical defense authorization bill markup periods this week and next week,” explained Alexander Nicholson, executive director of Servicemembers United.

“It was largest number of veterans ever hitting the Hill at once to lobby” on DADT, said Nicholson, “sending a message overall about their seriousness and intensity of demanding repeal this year.”

One of those veterans was John Affuso, who is now an attorney in Boston. Affuso said he flew to Washington specifically to lobby Republican Senator Scott Brown (R-Mass.), a crucial member of the Senate Armed Services Committee.

Brown, elected in January to fill the seat left vacant by the late Edward M. Kennedy’s death, is one of five senators whose votes repeal advocates say they need to ensure repeal provisions are approved in the Senate.

The four other members of the Senate Armed Forces Committee, all Democrats, are Senators Evan Bayh of Indiana, Bill Nelson of Florida, Jim Webb of Virginia, and Robert Byrd of West Virginia.

“I told [Brown’s] legislative aide,” Affuso said, “that the senator and I have a couple of things in common, the same law school (Boston College) and the National Guard. The difference is that he went on to have a career as a Judge Advocate General (JAG). I ruled that out for two reasons. First, I couldn’t see how I could serve under the policy even as a signalman that would have been problematic personally. Second, after law school, as a JAG officer, I couldn’t throw people out.”

Senator Brown has not yet made clear his position on lifting the ban. But shortly after being sworn in, he voiced concern about a repeal as a “social experiment.”

Brown’s vote in committee is an important one and could be a defining moment as he seeks to carve out national role in the Republican Party at the same time he tries balancing his duty to represent the generally gay friendly state of Massachusetts.

Bay State repeal advocates have left nothing to chance. An HRC-hosted LGBT veterans panel and discussion, also sponsored by MassEquality, was held in Boston’s Historic Faneuil Hall on Wednesday, May 19, aiming was to win over Brown’s support.

“I don’t know his mind,” said Joe Solmonese, HRC president. “But if a guy like him stepped forward and said [repeal] is the right thing to do and to hell with the consequences” that would be a an example of real “leadership” that, “if handled the right way, he could still have a place on the national stage.”

In addition to lobbying members of Congress, gay veterans also participated in special policy briefings with White House officials and staff members of the Pentagon’s DADT study group.

And repeal proponents’ optimism was also bolstered by a letter to President Obama from the grandson of former President Harry Truman. It was Truman who issued an executive order on July 26, 1948, which set in motion the racial integration of the armed forces.

“There are strong parallels between desegregation of the military and the debate over ‘don’t ask, don’t tell,’” wrote Clifton Truman Daniel, in the open letter to the president, published by a number of newspapers.

“It was not easy,” Daniel wrote. “[My grandfather] faced fierce opposition from inside and outside the military.” Daniel voiced “hope” that President Truman’s “example” would help President Obama lead “with the same courage and conviction.”

Anti-Bullying Measures Advance Against Obstacles

There’s a tug-of-war underway in the movement to pass more laws to address the growing problem of bullying, and it centers on whether such laws should “enumerate” bullying that targets LGBT youth.

Photo credit: Wikimedia Commons
Photo credit: Wikimedia Commons

There’s a tug-of-war underway in the movement to pass more laws to address the growing problem of bullying, and it centers on whether such laws should “enumerate” bullying that targets LGBT youth.

Only eight of the 43 states that have laws to address safe schools enumerate—or specifically identify—bullying based on sexual orientation and gender identity as prohibited conduct.

The New York Assembly passed the enumerated “Dignity For All Students Act” on May 17 and sent it back to the Senate, where an earlier version had died.

But a bill that sought to address bullying in Michigan died in 2008 in the state Senate because senators could not agree on whether to enumerate the categories of victims. A new, non-enumerated version of the bill this year passed the state House on May 12, and now heads back to the Senate.

The right-wing American Family Association has been actively opposing language that defines bullying as “reasonably perceived to be motivated by animus or by an actual or perceived characteristic.” In an action alert to supporters in early May, the AFA said the Michigan bill would make bullying a “thought crime” and would still define it as “motivated by a student’s ‘characteristics,’ including homosexual behavior and cross-dressing.”

In the past several weeks, Massachusetts, Mississippi, and Wisconsin have each enacted non-enumerated anti-bullying laws even though LGBT advocates had been pushing for enumerated versions.

New Hampshire is also feeling its way around the issue. The state already has a non-enumerated anti-bullying law. The state Senate passed a bill May 12 (already passed by the House) that would update the law to include “cyber-bullying”—using electronic devices to harass or intimidate other students. The bill notes that “Bullying in schools has historically included actions shown to be motivated by a pupil’s actual or perceived . . . sexual orientation [or]. . . gender identity and expression.” But, the new bill would not require school districts to adopt policies that specifically include protection on the basis of sexual orientation and gender identity.

In contrast, a bill in Illinois that covers bullying specifically targeted at students because of their sexual orientation or gender identity, among other attributes, is now awaiting the signature of Governor Pat Quinn.

A 2007 survey of students by the Gay, Lesbian, and Straight Education Network (GLSEN) found that enumerated policies are more effective than generic ones. In schools where the policies enumerated bullying based on sexual orientation, students were found to be more likely to report harassment problems to staff, and staff were more likely to help.

But one of the most high-profile national groups pushing for laws to address the problem of bullying, “Bully Police,” is also one of the key opponents of enumeration.

Brenda High, founder of Bully Police, told the NY Daily News in March that she believes that state’s legislature has repeatedly failed to pass an anti-bullying law because the bill includes language that gives “special protection” to gay children and those with special needs.

On its Web site (bullypolice.org), Bully Police explains, “Defining victims will slow the process of lawmaking, dividing political parties who will argue over which victims get special rights over other victims. . . . All children who are bullied are victimized and they ALL need to be protected.”

High founded the group after she lost her son Jared to a bullying-related suicide in 1998.

Bully Police representatives have been visible in pushing for the anti-bullying laws that have been enacted in several other states, including Arizona, Florida, New Hampshire, and Virginia, all of which are non-enumerated. The Florida law, the “Jeffrey Johnston Stand Up for All Students Act,” is named for the son of Bully Police state co-director Debra Johnston.

One of the “Recommended Speakers” listed on the Bully Police Web site is Warren Throckmorton, a professor of psychology at Grove City College in Pennsylvania. Throckmorton is a leading proponent of counseling aimed at encouraging gay people to overcome their same-sex attractions, and he contributed articles to High’s book Bullycide in America.

Throckmorton was also listed as a contact on a press release concerning a 2005 workshop held by Parents and Friends of Ex-Gays & Gays (PFOX). At that conference, Misty Cole, Ohio State Director for Bully Police, was invited to speak about why Bully Police believed anti-bullying laws should not be enumerated. (Throckmorton has since become critical of some of PFOX’s extreme anti-gay positions and is no longer affiliated with the organization.)

Throckmorton also asked High “for her advice to Christians who want to make a difference” for bullied kids. He used her answer in his 2009 article “‘That’s So Gay’—The Deadly Consequences of Bullying.”

Her reply read in part, “We must teach our children Christian values and ask our schools to teach ‘Do Unto Others’ values so that all of our children can have a safe and bully-free environment to learn.”

High’s words reflect Throckmorton’s own promotion of the “Golden Rule”—“Do to others as you would have them do to you”—as a way to combat bullying. Throckmorton has created the “Golden Rule Day” as an alternative observance on the same day as GLSEN’s annual “Day of Silence.” GLSEN’s event is meant to bring attention to LGBT-based bullying and harassment. Throckmorton’s event is for “Christian students” who condone neither homosexual behavior nor harassment or violence based upon it, but pledge to follow the Golden Rule.

The battle over enumeration could soon move to the federal level where several bills have been introduced to address the issue. So far, those bills include language to enumerate bullying against LGBT youth.

Pelosi: DADT and ENDA votes this year

House Speaker Nancy Pelosi reassured representatives of several LGBT organizations this week that the Employment Non-Discrimination Act (ENDA) and a measure to repeal Don’t Ask Don’t Tell (DADT) will get votes this year.

Nancy Pelosi
Nancy Pelosi

House Speaker Nancy Pelosi reassured representatives of several LGBT organizations this week that the Employment Non-Discrimination Act (ENDA) and a measure to repeal Don’t Ask Don’t Tell (DADT) will get votes this year.

Pelosi made her comments in an hour-long telephone conference call with representatives of six LGBT groups on Monday.

One of those representatives, Kate Kendell, executive director of the National Center for Lesbian Rights (NCLR), said Pelosi, “in no uncertain terms, without any equivocation or evasion, stated several times that ENDA was her priority and that it would move in this Congress—and there was no question.”

Concern that ENDA might not get a vote this Congress has been intensifying for the past several weeks, as the number of voting days in the House dwindles during the last months of the 111th Congress. Some activists said the 218 votes to pass the bill are there but that the House leadership had not scheduled the bill for a vote. And many were alarmed that the momentum to pass a measure to repeal DADT may have been seriously hobbled by missives from Defense Secretary Robert Gates and the White House urging that the policy stay in place until the DOD completes its study, at the end of the year, on how repeal could be implemented.

But Kendell and others said Pelosi committed to passing ENDA and repealing DADT this year.

“She seems absolutely committed to getting that done,” said Mara Keisling, executive director of the National Center for Transgender Equality. Keisling, who has been a key organizer of support for this term’s ENDA, which includes a prohibition of “gender identity” discrimination, was another one of the participants in Monday’s conference call.

Keisling, who said the phone call took place at about 1:30 p.m. Eastern Time, noted that Pelosi talked about there being a “limited amount of time” and many other things that have to happen on the House floor before the end of this session.

While Pelosi “did not commit to a specific date” for a vote on ENDA, said Keisling, she left the impression it could move in committee as early as this week.

And Kendell said Pelosi reassured the group leaders that, while a measure to repeal DADT may move first, “she stated in no uncertain terms that ENDA is moving and it will move under her watch and it will move in this Congress.”

DADT could come up as early as next Thursday, when the House begins consideration of an annual bill on Defense spending.

Pelosi spokesman Drew Hammill confirmed the call took place and said that, in addition to Kendell and Keisling, the participants included several Pelosi staff members, Joe Solmonese, president of the Human Rights Campaign; Geoff Kors of Equality California; Toni Broaddus, executive director of the national Equality Federation; and Masen Davis, executive director of the Transgender Law Center, a California legal group.

HRC spokesman Fred Sainz said Solmonese was traveling Tuesday and could not return a reporter’s call, but Sainz, too, confirmed that Pelosi made a commitment to vote on both ENDA and DADT repeal. He noted this was the first time the Speaker had had a conference call specifically with representatives of LGBT organizations on this issue.

Broaddus of the Equality Federation said Pelosi “didn’t give us any dates” but “assured us both bills are moving and that she’s very committed to getting them through.”

Several participants in the phone call said Pelosi expressed concern about the likelihood that Republicans will exercise their option, as the minority party, to ask for a vote on a “motion to recommit” the bill to committee.

Such motions, which Republicans have used recently to thwart Democratic legislation, can force votes on whether to send a bill back to committee with instructions to either kill or amend it. The amendments proposed on recent legislation have been designed to both delete essential language from the underlying bill and propose language that could cause embarrassment for any legislator to oppose. Such was the case last on a bill to create more jobs. The motion to recommit sought to insert language to prohibit paying any federal employee “officially disciplined for violations regarding the viewing, downloading, or exchanging of pornography, including child pornography, on a federal computer or while performing official government duties.” Democratic leaders pulled the jobs bill when they saw that a sufficient number of Democrats were voting for the motion to recommit.

“I’m sure they’ll try that with ENDA,” said Keisling, “but they’re going to try that with every bill that comes along from now on.”

So, supporters of ENDA and the DADT repeal must ensure they have 218 votes in the House, not only to pass each measure but also to defeat any such hostile motion to recommit. A spokesman for Rep. Barney Frank (D-Mass.), who introduced ENDA, said last week that Frank was urging LGBT activists to continue and step up the lobby effort to secure those votes. Frank was not available for comment Tuesday, and Rep. Tammy Baldwin’s office did not respond to a request for comment.

But several participants in Monday’s phone call said Pelosi assured them she has “no intention of losing either” ENDA or DADT repeal.

Keisling and others said Pelosi was “very clear” that one of the bills—but not both—would see action before Memorial Day.

The House is slated to take up its annual bill on Defense funding on Thursday and Friday, May 27 and 28. Frank and others have said that DADT repeal, like the hate crimes measure that passed last year, would come up during consideration of the DOD authorization bill.

Activists held a rally outside the Speaker’s office in San Francisco and a press conference in Washington, D.C., on Tuesday to keep the pressure on for a vote. At the National Press Club press conference, National Gay and Lesbian Task Force Executive Director Rea Carey said LGBT activists are “at the end of our patience.”

“We have done our work,” said Carey. “We have provided the numbers and the stories; and we have endured as we’ve watched thousands of LGBT workers lose their foothold in a struggling economy—not because of downsizing, or poor performance or closed businesses but—because of prejudice….

“So today, Congress must step up to its responsibility, to fully accept its charge to serve its constituents,” said Carey. “To step up to its moral obligation to preserve the integrity of the very fabric of our nation by providing an accessible workplace to all Americans—regardless of sexual orientation or gender identity.”

Noting that activists have been trying for 36 years to pass some form of federal protection against discrimination against gay workers, Carey demanded Congress pass the bill “without delay.”

Media asks for broadcast of Prop 8 closing

More than a dozen mainstream media news organizations petitioned the federal judge Tuesday to allow broadcast and webcast of closing arguments in the Proposition 8 lawsuit “to enhance the public’s ability to witness the parties’ respective closing arguments in this historic case.”

More than a dozen mainstream media news organizations petitioned the federal judge Tuesday to allow broadcast and webcast of closing arguments in the Proposition 8 lawsuit “to enhance the public’s ability to witness the parties’ respective closing arguments in this historic case.”

In a letter to U.S. District Court Judge Vaughn Walker, the news groups ask Walker to once again ask 9th Circuit U.S. Court of Appeals Chief Judge Alex Kozinski for permission to include closing arguments under the circuit’s pilot project on broadcast of court proceedings.

The letter was delivered to Walker on behalf of NBC and CBS, Fox News, Associated Press, National Public Radio, the Cable News Network, In Session (formerly known as Court TV), and other large media interests.

The unprecedented interest in the case challenging California’s same-sex marriage ban prompted Walker to seek approval for some limited live broadcast of the proceedings—and delayed viewing on YouTube.com. But before the trial got underway, in January, the U.S. Supreme Court intervened and prohibited Walker from making a broadcast of the proceedings available anywhere outside the federal courthouse in San Francisco.

The 5 to 4 majority of the Supreme Court indicated its decision to bar broadcast of the Perry v. Schwarzenegger trial was based—not on the merits of whether this trial should be made available for public viewing, but rather because— “it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.” Specifically, the majority suggested that Walker allowed only five business days for public comment on his plan to make the proceedings public, whereas “administrative agencies…usually” provide 30 days or more.

In their letter to Walker, the news organizations note that the federal district court has, since that time, re-opened the public comment period for 30 days and set forth the rules to authorize “the taking of photographs, public broadcasting or televising, or recording” court proceedings as part of the 9th Circuit’s pilot project. The news groups say they believe those developments make broadcast of closing argument “consistent with federal law” and the Supreme Court’s initial ruling.

The groups also note that earlier objections by defendants that broadcast of the proceedings could make them vulnerable to criticism or harassment from people who disagree with them are not at issue in the closing arguments since only attorneys will be speaking in court.

As of Tuesday night, Walker had not yet indicated whether he would seek approval for the broadcast.

Closing argument is scheduled for June 16.

ENDA has the votes, but does it have the priority?

Supporters of the Employment Non-Discrimination Act (ENDA) say they have the votes to pass the bill, they are just waiting for the Democratic leadership to call the bill to the floor. But the leadership has grown quiet.

Mara Keisling
Mara Keisling

Some LGBT activists say the votes are there to pass the Employment Non-Discrimination Act (ENDA) and they are just waiting for the Democratic leadership to call the bill to the floor. But the leadership has grown quiet—no more regular expressions of optimism and predictions for when Congress will take up the bill, and the waiting game is wearing on nerves.

“The community and the movement have done everything we’ve been asked to do,” said Mara Keisling, executive director of the National Center for Transgender Equality, this week. NCTE is one of the key groups lobbying for the bill this session, taking the lead on the additional language that seeks to prohibit discrimination based on gender identity, as well as sexual orientation.

“We’ve worked and worked and gotten sufficient votes to make sure gender identity stays in the bill,” said Keisling, “but the bill is not being prioritized.”

Rea Carey, executive director of the National Gay and Lesbian Task Force, said, “We have heard that the official whip is completed and that there are enough votes to pass ENDA in committee and in the House, which tells us that our vigorous lobbying and grassroots engagement efforts are being effective.”

“Leadership needs to do the right thing, right now,” said Carey, “and schedule a markup and pass an inclusive ENDA.”

One of those leaders is Rep. Barney Frank (D-Mass.), the most veteran of Congress’ three openly gay representatives, chairman of the House’s influential Finance Committee, and sponsor of the bill. Through a spokesman, Frank had no new information this week about when a vote will happen but that the vote count is not a certain and unchanging thing.

“The whip count is ongoing. It’s not done,” said Frank spokesman Harry Gural on Friday. “There’s not a scoreboard up there and once you hit that number, you’re done. It’s got to be ongoing.”

“What we need is for everyone to be calling their rep—even if it’s a rep who has said he would vote for the bill,” said Gural. “Phone calls are effective and we need to make these phones ring off the hook.”

Frank introduced the bill, H.R. 3017, in June of last year and the House Committee on Education and Labor held a hearing on it last September. But a long-sought hate crimes bill got the nod last year; Democratic leadership attached it to the annual bill authorize spending by the Department of Defense. And an enormously contentious and time-consuming debate over health care reform kept most everything else off the table until March of this year.

After the health reform legislation passed and was signed into law in late March, Frank said the way was now cleared for the House to take up ENDA. He predicted then that a vote would likely come as soon as Congress returned from a spring recess—in early April. It is now mid-May. On May 10, Roll Call newspaper, specializing in coverage of Congressional legislation, reported that “senior Democratic aides and lawmakers” believe ENDA could be on the House floor this month.

One such aide told this reporter that Democratic leaders would likely be discussing timing next week and there should be “more clarity” on timing “by the end of this month.”

Meanwhile, the remaining days in which the House can vote on anything are ticking away—House Majority Leader Steny Hoyer’s legislative calendar shows a total of 48 full days for voting and 14 part days before adjournment and mid-term elections.

Roll Call ran two articles in late April suggesting support for ENDA has been suffering because some supporters of the legislation in 2007 are suddenly getting cold feet over the inclusion of gender identity protection in the bill this year. But Frank told Roll Call this week the provision will stay in the bill and that he’s still optimistic for passage.

Some LGBT activists expressed upset over Frank’s comments to Roll Call that the bill, in addressing the gender identity issue, does give employers the right to expect that employees have a “consistent gender presentation” before they can sue claiming gender identity discrimination.

“They can’t sit there with a full beard and a dress,” Frank told Roll Call. But NCTE said Frank’s comment was simply reiterating the current state of the law.

“Barney was not really saying anything new,” said NCTE legal counsel Harper Jean Tobin. “It was troubling to a lot of transpeople, but people forget that ENDA puts rules on employers, not employees. And most employers don’t have gender-based dress codes.”

So, if the votes are there and a vote has been promised, why hasn’t a vote happened yet?

People on the Hill who are close to the action offer several explanations, though none would do so with their name attached. One said Democratic leaders worry about a repeat of last week’s debacle on a bill to encourage homeowners to adopt energy-saving measures. The bill passed the House 246 to 161 but not before Republicans attached provisions that could prevent it from being successful. One amendment requires that it cannot go into effect unless supporters can prove that it will not add to the deficit. Another amendment requires that contractors participating in the program ensure that they do not have any sexual predators among their employees.

Conservative Republicans are almost certain to try similar amendments on ENDA, as well as an effort to recommit the bill to committee, as a way of thwarting it.

But Keisling said these types of efforts are simply part of the game in Congress and that she’s “extremely confident” the support is there to pass ENDA.

“It’s just a question of getting prioritization” from Democratic leaders, said Keisling. “I know they’re busy—I get it. But apparently we’re not being prioritized. . . . The clock is running out.”

White House hints Kagan passive on “Don’t Ask” policy

The number of results from a Google search of “Elena Kagan” plus the word “gay” more than doubled from 722,000 on Monday, when President Obama nominated her to the U.S. Supreme Court, to 1,950,000 on Tuesday night, when Politico.com reported two friends said she is not gay.

Robert Gibbs
Robert Gibbs

The number of results from a Google search of “Elena Kagan” plus the word “gay” more than doubled from 722,000 on Monday, when President Obama nominated her to the U.S. Supreme Court, to 1,950,000 on Tuesday night, when Politico.com reported two friends said she is not gay.

Many of the results are articles and blogs discussing whether Kagan supported gay civil rights to the detriment of the military—a discussion that will clearly be a matter of intense focus during her confirmation hearing.

Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, put that at the top of his list Monday in reacting to the nomination. And efforts to complain about her lack of experience as a judge are running up against an embarrassing reality—former Chief Justice William Rehnquist never served as a judge prior to joining the Supreme Court; Chief Justice John Roberts served only two years; and Justice Clarence Thomas served barely one.

But the White House has taken an aggressive posture against efforts to thwart Kagan’s nomination by painting her as some kind of pro-gay, anti-military radical.

White House Press Secretary Robert Gibbs acknowledged during Tuesday’s routine press briefing that the White House submitted a commentary for publication in Tuesday’s Wall Street Journal to publicize the facts surrounding Kagan’s actions, as dean of Harvard Law School, with regard to military recruiters.

“We sent this out… because there’s people that either don’t know or are unwilling to understand the facts,” said Gibbs. “The military had, through a student organization, access to Harvard Law School students. And the semester in which they did not have access to the Office of Career Services actually saw an increase in the number of Harvard Law School students that joined the military.”

The essay in the Wall Street Journal did not make that latter point, but it did paint a picture of Kagan’s efforts to defend Harvard’s non-discrimination policy against the military’s “Don’t Ask Don’t Tell” policy as a more passive one than news reports have painted previously.

The commentary, written by Robert Clark who dean of Harvard Law just prior to Kagan, said Kagan merely “followed” a policy that was “already in place” since 1979. That policy, he said, barred employers from recruiting on campus unless they signed a statement agreeing not to discriminate based on various factors, including sexual orientation. Although the military refused to sign such a statement, said Clark, Harvard Law did allow military recruiters some limited access to recruit through the Harvard Law School Veterans Association.

In 1996, Congress passed the so-called Solomon Amendment to withhold federal funding from any university that barred military recruiters. Clark said Harvard Law relented so as not to jeopardize that funding for the entire university but that the school issued a statement each year expressing its disapproval of the military’s discriminatory policy.

When Kagan became dean in 2003, he said, she continued that policy—of allowing military recruiters but expressing disapproval of Don’t Ask Don’t Tell.

“Military recruiters used [campus recruiting] services,” wrote Clark, “but at the beginning of each interviewing season, [Kagan] wrote a public memorandum explaining the exception to the school’s nondiscrimination policy, stating her objection to ‘don’t ask, don’t tell,’ and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.”

Clark said “it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true.”

Meanwhile, Politico.com has the first sourced information purporting some knowledge of Kagan’s sexual orientation.

In a column posted late Tuesday night, Politico writer Ben Smith quotes Kagan’s former law school roommate, Sarah Walzer, as saying, “I’ve known her for most of her adult life and I know she’s straight.”

Walzer does not indicate that she’s speaking at Kagan’s request or on her behalf, but she offers, as evidence, that Kagan “dated men when we were in law school, we talked about men—who in our class was cute, who she would like to date, all of those things.”

Smith said Walzer agreed to be interviewed “after Kagan’s supporters decided they should tactfully put an end to the rumor” that Kagan is gay.

That rumor, which is fairly common about many people in public life, gained some traction with Kagan because she is 50 and unmarried and because the CBS News website posted a blog last month claiming that, if confirmed, Kagan would be the “first openly gay justice.” The White House quickly informed CBS the report was inaccurate, CBS took the post down, and the conservative blogger who wrote it apologized.

The Politico story also quoted another Kagan friend—the notorious former New York Governor Eliot Spitzer—as saying he, too, knew Kagan dated men at Princeton.

Kagan herself has made no public identification of her sexual orientation. Some LGBT activists reportedly expressed dismay that many news reports Tuesday ran a photo of Kagan playing baseball. The 1993 photograph, from the University of Chicago Law School, shows Kagan at the plate, holding a well-informed batting stance.

John Wright, news editor of the Dallas Voice, a gay newspaper, criticized the Wall Street Journal’s use of the photo. As he explained to Politico, “I think the newspaper, which happens to have the largest circulation of any in the U.S., might as well have gone with a headline that said, ‘Lesbian or switch-hitter?'”

The photo got more than a little notice and use by a number of news outlets Tuesday, including MLB.com. The website of major league baseball, asked several professional baseball players to assess Kagan’s batting stance from looking at the picture. New York Mets outfielder Jeff Francoeur said he thinks “she’s choked way too far up” on the bat, but most players asked said they thought she had a pretty decent stance. Some noted that it’s important to see a batter in action to get a full assessment.

“Batting stance looks OK,” said Ivan Rodriguez, a catcher for the Washington Nationals, “but I don’t know the swing.”

Liberal nominee clears Senate committee

The Senate Judiciary Committee Thursday morning recommended the nomination of pro-gay law professor Goodwin Liu to the 9th Circuit U.S. Court of Appeals by a vote of 12 to 7.

The Senate Judiciary Committee Thursday morning recommended the nomination of pro-gay law professor Goodwin Liu to the 9th Circuit U.S. Court of Appeals by a vote of 12 to 7.

Liu’s opposition to California’s Proposition 8, banning same-sex marriage, came up prominently during his confirmation hearing in April and will likely come up on the floor of the Senate as well. Liu tried to position himself as having played the role of a “neutral” legal scholar during the initiative campaign.

Although he did not discuss his personal views on Proposition 8 during the hearing, in one of many essays he has published in various newspapers and publications, he wrote “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He also predicted that same-sex marriage would eventually “become an unremarkable thread of our social fabric” and that those opposing it now will eventually be viewed as a “narrow and ultimately temporary majority.”

Republican John Cornyn said he was opposing Liu’s nomination because Liu is “committed to the life of an advocate” and “would use his perch to advance his policy views.”

President Obama nominated Liu, a professor of law at the University of California Berkeley School of Law, in February and his confirmation hearing has been delayed twice due to Republican opposition.

If confirmed, he would take a seat on the 9th Circuit U.S. Court of Appeals, which covers California and eight other western states. The American Bar Association gave him a “unanimously well-qualified” rating.

Reserved ovation for Kagan nomination to high court

Gay legal activists are applauding President Obama’s second nominee to the U.S. Supreme Court: Solicitor General Elena Kagan. But it could hardly be described as a standing ovation.

kagan_elena
Elena Kagan

Gay legal activists are applauding President Obama’s second nominee to the U.S. Supreme Court: Solicitor General Elena Kagan. But it could hardly be described as a standing ovation.

Former Clinton White House aide Richard Socarides called Kagan a “brilliant, pragmatic progressive interested in listening to all sides and building coalitions.”

Lambda Legal Defense and Education Fund Executive Director Kevin Cathcart said Kagan took “a strong position” in opposing the military’s ban on gays but noted that Obama administration has also “taken legal positions on ‘Don’t Ask, Don’t Tell’ and the so-called ‘Defense of Marriage Act’ with which we strongly disagree.”

Human Rights Campaign President Joe Solmonese applauded her selection as fulfilling Obama’s promise to promote “diversity” on the court.

If confirmed, Kagan would become only the fourth woman ever named to the court—out of 104 justices in the history of the court.

Kagan is of particular interest to the LGBT community. While serving as dean of Harvard Law School, she took sides with gays against military recruiters because the military would not abide by the school’s non-discrimination policy. That policy prohibited recruiters who discriminated based on sexual orientation.

Kagan clerked for one of the Supreme Court’s staunchest liberals, Thurgood Marshall, and was a research assistant for one of the greatest legal defenders of gay civil rights, Laurence Tribe.

Single and 50, she was also the subject of a CBS News website blog report last month which claimed that, if named to the court, Kagan would be the “first openly gay justice.” But Kagan has not publicly identified with any sexual orientation, and the White House moved quickly to say the report was “inaccurate.”

The president announced his selection at a 10 o’clock press conference this morning.

Socarides called Kagan “one of the smartest people I know” and “someone the country will come to like and respect.”

“Her thinking is well within the mainstream,” said Socarides, and “very much in keeping with Obama’s overall philosophy…. Pretty much a home-run appointment.”

Shannon Minter of the National Center for Lesbian Rights called Kagan “well-qualified” and said members of his organization “strongly support increasing the number of women on the court.”

Lambda’s Cathcart said he did not expect Kagan “to answer questions about how she would rule on specific issues such as these that will come before her.” But he said Lambda does “expect that she will respond to questions about her judicial philosophy and her understanding of core constitutional principals of equal protection and privacy that are so crucial to the civil rights of people who face discrimination based on sexual orientation, gender identity and/or HIV status.”

Long-time gay legal activist Paula Ettelbrick, an adjunct professor of law at New York University Law School, said Kagan’s nomination is “most historic” and that “it moves women’s representation on the Court to a more meaningful plurality.”

Mainstream news organizations immediately set about assessing her odds for confirmation. MSNBC speculates both conservatives and liberals could criticize her. Commentator-reporter Chuck Todd said conservatives would fault Kagan over her opposition to military recruiters at Harvard. He said liberals could fault her for defending some policies put in place by the administration of President George W. Bush.

In introducing Kagan to the press conference Monday morning, Obama praised Kagan for having sought conservative views to balance liberal views at Harvard. During her confirmation process for Solicitor General last year, the Senate Judiciary Committee received letters in support of Kagan from such well-known conservatives as former Solicitor Generals Charles Fried and Kenneth Starr, and such well-known liberals as Eleanor D. Acheson.

Her confirmation as Solicitor General was opposed, as expected, by some ultra-conservative groups, including Concerned Women for America, who faulted her for opposing military recruiters, as well as Focus on Family and more than a dozen other groups who said she could not be counted on to defend “Don’t Ask Don’t Tell.”

Kagan, an attorney, has never served as a judge but is widely respected as a legal scholar.

NCLR’s Minter said, “Because she has not served previously as a judge, it will be important to hear more about her judicial philosophy and whether she has a strong commitment to enforcing constitutionally protected rights and liberties. “

Given that she filled out the Senate Judiciary Committee’s lengthy questionnaire just last year, the vetting of her by various senators should go fairly rapidly.

In response to questions from the Judiciary Committee last year, Kagan said she views as “unjust the exclusion of individuals from basic economic, civic, and political opportunities of our society on the basis of race, nationality, sex, religion, and sexual orientation.” But she also said she was “fully convinced” she could defend U.S. laws even when they do not reflect her personal views, including the federal law which penalizes universities which ban military recruiters.

Kagan’s questionnaire also indicated that she delivered a welcoming address to introduce panel members at a Harvard University Gay and Lesbian Alumni event in September 2008. And in April 2006, she moderated a panel of the LAMBDA Student Organization concerning the “Relationship between Law Schools and the Military.” Such participation is fairly typical of law school deans and her list includes an even greater number of appearances before groups promoting civil rights for black law students.

Senators Orrin Hatch and Jon Kyl, two Republicans on the Senate Judiciary Committee who voted for Kagan as Solicitor General, issued statements Monday morning saying their vote is not guaranteed for the Supreme Court appointment.

If confirmed, Kagan will become the third woman on the U.S. Supreme Court today and the second unmarried justice. Justice Sonia Sotomayor, Obama’s first nominee to the Supreme Court, was married briefly but divorced in 1983.

A press release from HRC applauded Kagan’s “commitment to fairness and equality.”

“Specifically, we applaud Elena Kagan’s vocal opposition to the Solomon Amendment and the discriminatory ‘Don’t Ask, Don’t Tell’ law.

HRC said it would continue examining Kagan’s record on issues that affect the LGBT community.

Kagan’s nomination is being made to fill the seat of retiring Justice John Paul Stevens, who announced his retirement last month.

The composition of the Supreme Court is increasing critical to the LGBT civil rights movement. Three important cases seeking equality in marriage rights are winding their ways to the high court and it seems nearly inevitable that the high court will choose to weigh in on at least one, if not all three. The court will also hear a case this fall that will determine whether a virulently anti-gay protest group has a First Amendment right to stage their demonstrations in ways that disrupt private funeral services.

While many nominees that the occasion of the press conference in introduce close members of their family, Kagan noted that her parents had already passed away and said she was “thankful for my brothers and other family and friends” for being there with her.

Kagan being named this morning

Gay legal activists are today applauding President Obama’s second nominee to the U.S. Supreme Court: Solicitor General Elena Kagan.

Gay legal activists are today applauding President Obama’s second nominee to the U.S. Supreme Court: Solicitor General Elena Kagan.

Former Clinton White House aide Richard Socarides called Kagan “a brilliant, pragmatic progressive interested in listening to all sides and building coalitions.”

The president is announcing the selection at a 10 o’clock press conference this morning.

President Mother’s Day Proclamation Acknowledges Two-Mom Families

For the first time ever, a president’s annual Mother’s Day proclamation has included a specific mention of families that include two mothers.

For the first time ever, a president’s annual Mother’s Day proclamation has included a specific mention of families that have two mothers.

President Obama’s May 7 proclamation said in part, “Whether adoptive, biological, or foster, mothers share an unbreakable bond with their children, and Americans of all ages and backgrounds owe them an immeasurable debt. Nurturing families come in many forms, and children may be raised by two parents, a single mother, two mothers, a step-mom, a grandmother, or a guardian.”

The President’s Mother’s Day proclamation in 2009 did not mention two-mom families, but followed the examples of Presidents George H. W. Bush, Bill Clinton, and George W. Bush, who almost always enumerated some version of “adoptive, biological, or foster mothers,” occasionally adding “stepmothers.” (President George W. Bush did not, however, specify types of mothers after 2003.)

Jennifer Chrisler, executive director of the Family Equality Council, a support and advocacy group for LGBT families, issued the following statement in response to this year’s Presidential proclamation: “We welcome the President’s words today, but they represent the bow on the gift of equality we don’t yet have.”

Chrisler noted that one million LGBT families raising two million kids need action. The organization seeks passage of the Every Child Deserves a Family Act, introduced into the House last October. The bill seeks to prohibit discrimination in adoption or foster care placements based on the sexual orientation, gender identification, or marital status of any prospective adoptive or foster parent. It awaits action in the House Ways and Means Committee.

The bill supports the group’s priority of opening the door for qualified LGBT people to parent the 120,000 kids up for adoption in the foster care system. “There are at least four times as many LGBT people wanting to adopt as there are kids waiting to be adopted, according to the Williams Institute,” Chrisler said. “The question is: Do we give these kids parents, or not? Thirty years of research and all major child welfare organizations agree: gay parents are good parents.”

President Obama, in naming November 2009 as National Adoption Month, did indicate his support of the concept, stating, “By continually opening up the doors to adoption, and supporting full equality in adoption laws for all American families, we allow more children to find the permanent homes they yearn for and deserve.”

He has acknowledged LGBT people in other proclamations as well. Last year, he issued the first Presidential Pride Month proclamation since President Clinton in 2000.

In proclaiming Sept. 28, 2009, as Family Day, he said, “Whether children are raised by two parents, a single parent, grandparents, a same-sex couple, or a guardian, families encourage us to do our best and enable us to accomplish great things.”

But in his proclamation of May 2010 as National Foster Care Month, he made no mention of LGBT foster parents.

And one day before his Mother’s Day proclamation, he proclaimed Military Spouse Appreciation Day, but made no mention of the same-sex partners of servicemembers.