9th Circuit nominee grilled over Prop 8

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores.

Goodwin Liu
Goodwin Liu

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores—over Democratic passage of a major health reform law, gun control, and over the current nominee’s opposition to certain nominees of President Bush.

And Democrats seemed all too happy to trot out evidence that every weakness Republicans complained about in the nominee had been true of numerous Republican nominees who had been approved.

For his part, the nominee—Goodwin Liu of California—sought to distance himself from his many public statements in support of various liberal positions on a wide range of social issues.

Very soon along the way, Proposition 8 came up.

Senator Tom Coburn (R-Okla.) brought it up, noting that in Liu’s writings, the law professor had appeared to argue for the democratic process on some issues, like gun control, but against it on others, like same-sex marriage.

“Can you please explain why a court should consider the will of the majority as it is expressed through the legislative process when restricting gun rights but not when upholding the law protecting traditional marriage?” asked Coburn.

Liu suggested his legal position on Proposition 8 was mischaracterized. He said that, in October 2008—just before California voters passed Proposition 8 to ban same-sex marriage—he testified as a “neutral” legal scholar before a California legislative committee. And he said he told the legislature, “Proposition 8 should be upheld by the California Supreme Court.”

“Not struck down, but upheld by the California Supreme Court under existing precedents,” said Liu. “Despite whatever other views I might have had about Proposition 8 on the merits – my personal views, whatever, and even my legal views of the past—I testified before that committee that the California Supreme Court should uphold that proposition in deference to the democratic process.”

Coburn challenged Liu’s recollection, saying Liu had testified that the California Supreme Court “could” uphold the proposition, not that it “should,” as Liu recalled.

Inconsistency might be a polite word for Coburn’s own remarks. He arrived at the confirmation hearing late and, before posing the first question, told Liu he was sorry he had missed Liu’s opening statement. But, he added, “I’ve read it.” Liu had not made an opening statement.

Liu’s decision not to make an opening statement was a surprise to many.

“Oh, my goodness, that’s very unusual,” said an apparently startled Senator Dianne Feinstein (D-Calif.), who was acting as chair of the proceeding, even though Senate Judiciary Chairman Patrick Leahy was at the hearing.

Feinstein then, almost without missing a beat, posed the first question, tackling the recent news report that Senator Jeff Sessions (R-Ala.) was accusing Liu of deliberately withholding 117 documents from the committee.

Every judicial nominee fills out a lengthy questionnaire to provide a great deal of information to the Senate Judiciary Committee, including a list of all “published writings and public statements.”

Liu acknowledged having provided an incomplete list and apologized for having to make a supplemental submission. (He did not offer any excuses, but parents watching the proceedings probably took note of the fact that his second child was born just four weeks ago.)

Liu said he “redoubled” his efforts to search for additional materials, including occasions on which he conducted brown bag lunch conversations as a law professor.

“I’m sorry that the list is long and I’m sorry that I missed things the first time,” said Liu. “For better, for worse, I’ve lived most of my professional life in public and my record is an open book. I absolutely have no intention, and frankly no ability, to conceal things I’ve said, written or done.”

But Sessions implied that Liu’s failure was deliberate. And Senator John Cornyn (R-Tex) echoed Sessions complaint, saying he was concerned with Liu’s “sloppiness” in his response to the questionnaire and implying that it rose to the level of contempt.

The attacks rang hollow some minutes later when Senator Feinstein noted that Chief Justice John Roberts Jr. “failed to provide documentation for over 75 percent” of his speeches and writings and had to submit—not 117 but—15,000 supplemental documents “just four days before his confirmation hearings were scheduled to being.

Many of the Republican Senators seemed intent on grilling Liu over remarks he had made in opposing the nominations of both Roberts and Sam Alito—both appointees of Republican President George W. Bush.

In opposing Alito’s nomination, Liu had stated: “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

Senator Jon Kyl (R-Ariz.) these words, characterizing Alito’s various decisions, demonstrated that Liu lacked the “tempered language” of a judge. He said the critique amounted to a “vicious, emotionally and racially charged, very intemperate” attack on the nominee that “calls into question your ability to approach and characterize people’s positions in a fair and judicious way.”

Sessions accused Liu of advocating for unlimited power for the courts; Kyl accused him of advocating for unlimited power of the federal government.

Liu repeated that his personal views would not be part of his approach to an issue on the court. 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, Liu told the Los Angeles Times, “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He has predicted that same-sex marriage will 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.”

There is no date scheduled for the full Senate to take up Liu’s nomination but the aggressiveness of Republican opposition to Liu demonstrated at the confirmation hearing suggests a filibuster is likely.

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.

Obama clears Feldblum for EEOC seat

Using a constitutional provision known as a “recess appointment,” President Obama on Saturday appointed lesbian law professor Chai Feldblum and three others to positions on the U.S. Equal Employment Opportunity Commission.

Chai Feldblum
Chai Feldblum

Using a constitutional provision known as a “recess appointment,” President Obama on Saturday appointed lesbian law professor Chai Feldblum and three others to positions on the U.S. Equal Employment Opportunity Commission.

Feldblum and the others had been approved by a Senate committee in early December but their confirmation vote was put on indefinite hold by a Senate Republican.

In making the direct appointments for the EEOC, Obama also made 11 other recess appointments of nominees to “critical administration posts.” In a statement, the White House referred to “months of Republican obstruction” to nominees and noted that while the Senate has yet to approve 217 of President Obama’s nominees, President Bush had only 5 still pending at this point in his first term.

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

Some predicted that opposition would surface during her confirmation hearing in November. But it didn’t, at least in part because Tom Harkin, the chairman of the Senate Health, Education, Labor and Pensions Committee, which handled the nomination, met the controversy head on.

“Something has come to our attention here—a petition,” said Harkin, “…that you signed onto” that expresses support for “committed loving households in which there are more than one conjugal partner.”

“That says polygamy to me,” said Harkin, noting that it is illegal in the United States and that, in the 20-plus years he has worked with her, he never knew she supported polygamy.

“I do not support polygamy,” said Feldblum. “I am sorry I signed that document and I have asked that my name be removed.”

A spokesperson for Senate Majority Leader Harry Reid said March 1 that Feldblum’s nomination, and that of the other EEOC nominees, had been put on hold by a Republican senator. Any senator can put any nominee on indefinite hold for a period of time without identifying himself or herself. While rules require that a senator must identify themselves within a few days, senators have been able to get around that rule by taking turns putting the hold in place.

Feldblum is probably best known for her work on the Americans with Disabilities Act (ADA), which passed in 1990, prohibiting discrimination in employment, public accommodations, and other areas against people with disabilities. The law also covered people with HIV infection. She was also involved in last year’s bill that made amendments to the original law.

But Feldblum is best known to the LGBT community as a key counsel on the drafting and negotiations over the Employment Non-Discrimination Act (ENDA). She also served for a time as legislative counsel for the American Civil Liberties Union in Washington, D.C. Feldblum served for a year as a law clerk to U.S. Supreme Court Justice Harry Blackmun. She is currently a professor of law at Georgetown University and serves as co-director of the university’s Federal Legislation and Administrative Clinic.

During her confirmation hearing, Feldblum made prominent mention of her affiliation with another Catholic institution, Catholic Charities USA. The Georgetown University Law School’s Federal Legislation Clinic, which Feldblum founded in 1993, worked for many years representing Catholic Charities.

Feldblum assured the Committee that she is aware of and comfortable with the religious exemptions in Title VII of the Civil Rights Act and in ENDA.

“I strongly support that exemption,” said Feldblum, “…and I would not have a problem at all enforcing that exemption.”

Should ENDA pass, a position on the EEOC puts Feldblum in position to be one of five commissioners to develop regulations for its implementation.

D.C. marriage survives Senate vote

One of the 41 amendments which the U.S. Senate voted on this week, while passing the companion bill of “fixes” to the landmark health care legislation, was an amendment to allow Washington, D.C. voters to hold a referendum on same-sex marriage. The amendment was defeated 36 to 59, with the newest—and Republican—senator from Massachusetts, Scott Brown, joining his party with a yes vote.

One of the 41 amendments which the U.S. Senate voted on this week, while passing the companion bill of “fixes” to the landmark health care legislation, was an amendment to allow Washington, D.C. voters to hold a referendum on same-sex marriage. The amendment was defeated 36 to 59, with the newest—and Republican—senator from Massachusetts, Scott Brown, joining his party with a yes vote. Three Republicans did not take part in the vote, which was recorded at 1:16 a.m. on Thursday, March 25, but two Republicans voted no—Susan Collins and Olympia Snowe of Maine. Some minor changes were made in the legislation, but the House, which passed the fixes bill on Sunday night, quickly took up the amended measure and approved it. In praising the overall effort on health care reform, Senate Majority Leader Harry Reid described it as—among other things—“an anti-discrimination bill.” While the legislation did prohibit discrimination based on a number of factors, it left out sexual orientation and gender identity, which had been part of the original House health care measure.

DADT: Air “views” on how, not whether

Defense Secretary Robert Gates has repeatedly said he wants his working group on “Don’t Ask, Don’t Tell” to discuss the plan to repeal the policy with service members and their families to get their views. But Gates, on Thursday, began showing some toughness against views within the military that oppose President Obama’s directive that the military dismantle the policy.

Defense Secretary Robert Gates has repeatedly said he wants his working group on “Don’t Ask, Don’t Tell” to discuss the plan to repeal the policy with service members and their families to get their views. But Gates, on Thursday, began showing some toughness against views within the military that oppose President Obama’s directive that the military dismantle the policy. Gates was asked to react to a letter to the editor in the March 8 Stars & Stripes newspaper from a three-star Army general who said he believes the military should retain the policy. General Benjamin Mixon also urged service members who agreed with him to “write your elected officials and chain of command and express your views.” Gates told reporters Mixon’s letter was “inappropriate.” Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff, agreed and said the matter is “being addressed inside the chain of command.” Military leaders have publicly expressed their opinions in favor of retaining DADT, while responding to questions in front of panels in Congress. But Mullen said the military had been given “very specific direction” not to speak out about the policy change. Mullen noted that military “follow the direction of leadership right up to the president.”

Gates unveils his “more humane and fair” DADT

Secretary of Defense Robert Gates today unveiled the Pentagon’s plan for making enforcement of the current “Don’t Ask, Don’t Tell” policy “more humane and fair.”

Robert Gates
Robert Gates

Secretary of Defense Robert Gates today unveiled the Pentagon’s plan for making enforcement of the current “Don’t Ask, Don’t Tell” policy “more humane and fair.”

The new plan is “not a moratorium on enforcement” of the policy, said Gates. The existing policy bars openly gay people from the service unless they can swear they never have and never will engage in homosexual conduct. Instead, it stipulates that service members “who are involuntarily outed by a third party” can no longer be discharged, and discharges under “Don’t Ask, Don’t Tell” (DADT) must be approved by a high-ranking officer—a one-star general or higher.

In a preliminary statement, the Servicemembers Legal Defense Network said this morning’s announcement is “another major step” in reducing the number of discharges under DADT.

“The question on the table is how, not whether, to repeal the ban,” said SLDN Executive Director Aubrey Sarvis. “As welcome as these very helpful changes are, these interim steps are not a substitute for full repeal to reduce DADT discharges to zero. An unjust law still remains on the books and the harsh reality is service members will still be discharged under it every day until Congress musters the courage to act to bury the law once and for all.”

Department of Defense General Counsel Jeh Johnson, in response to questions from reporters following Secretary Gates’ announcement, that third parties will still be able to offer information about someone’s sexual orientation but that the standards for those comments to trigger an investigation will be more stringent. The new regulations, he said, require that an officer determine the reliability of the informant and whether that person might have an ulterior motive in making a report.

The regulations, said Johnson, “discourage the use of hearsay or overheard conversations,” but “hearsay is not excluded under the revisions.”

Johnson acknowledged that “most” of the 428 gay-related discharges last year were initiated by the service member’s own acknowledgment that he or she was gay. Asked whether a discharge proceeding would be triggered if one service member confronted another with a question, such as “Are you gay?” and the latter responded affirmatively, Johnson said that was an issue they had not yet addressed and “we’ll have to work that through.”

For his part, Secretary Gates emphasized that he does not want the “Don’t Ask, Don’t Tell” policy to be repealed before his DADT working group hands in its report on December 1.

“I do not recommend a change in the law before we have completed our study,” said Gates, at Thursday’s press briefing. He said he thinks it’s important the working group have time to elicit the views of service members and their families before proceeding.

Gates said the changes announced today will take effect immediately, that they apply to “all open and future cases,” but that the services have 30 days to conform.

Today’s announcement is in fulfillment of Gates’ statement to a Senate Judiciary Committee on February 2 that he would present a plan within 45 days to ensure that, “within existing law,” enforcement of the policy will be conducted “in a more humane and fair manner.”

Grilling of 9th circuit nominee delayed

The Senate Judiciary Committee was squaring up for a showdown this week over President Obama’s most controversial judicial nominee to date, but that showdown has been indefinitely delayed, while Republicans use a parliamentary delaying tactic on the companion bill to the health care reform law.

Goodwin Liu
Goodwin Liu

The Senate Judiciary Committee was squaring up for a showdown this week over President Obama’s most controversial judicial nominee to date, but that showdown has been indefinitely delayed, while Republicans use a parliamentary delaying tactic on the companion bill to the health care reform law.

The nominee is Goodwin Liu, a professor of law at the University of California Berkeley School of Law. President Obama nominated him last month to 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.

But he also has a paper trail a mile wide and a mountain high. That trail reads like good news for the LGBT community, but it screams “liberal” to Republicans. Fox News has reported that Republicans are “champing at the bit to grill Liu, who has described the Constitution as a living document, advocated for same-sex marriage and suggested health care is a right.”

Fox says Liu’s nomination “is getting extra attention because conservatives are concerned that he could be on the fast track for the Supreme Court.”

Liu is one of four people President Obama has named to federal appeals court positions since February 24. The other three—Ray Lohler Jr. and Robert Chatigny for the 2nd Circuit, and Scott Matheson for the 10th—have relatively quiet credentials.

But Liu has been very much part of the public discourse on a number of civil rights issues, including Proposition 8, the initiative which voters in California passed in November 2008 to ban same-sex marriage.

In one of many essays he has published in various newspapers and publications, Liu told the Los Angeles Times, “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He has predicted that same-sex marriage will 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.”

And he’s characterized U.S. Supreme Court Chief Justice John Roberts as a partisan and divisive figure who is “unfriendly to civil rights.”

He signed onto a friend-of-the court brief, prepared by lesbian law scholar Kathleen Sullivan, in the same-sex marriage lawsuit before the California Supreme Court in 2008. The brief argued that the California constitution’s guarantee of equal protection required same-sex couples have the same access to marriage licenses as straight couples.

Keeping Faith with the Constitution, a book he co-authored with two others, praised the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, striking down sodomy laws.

“In worrying that criminalization of private homosexual conduct invites public discrimination against homosexual persons,” said Keeping Faith, “the Court understood that the lives and identities of gay people transcend what they do in their bedrooms to encompass who they are in civil society. Protecting gay people’s choices within the intimacy of their homes serves essentially as a safeguard of their dignity in a more public sphere.”

Liu also criticized the nomination of John Roberts Jr. to the Supreme Court, calling it a “seismic event that threatens to deepen the nation’s red-blue divide.” Roberts’ legal career, wrote Liu, “is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Not surprisingly, Liu’s legal career has been studded with activities friendly to civil rights, abortion rights, and the environment.

Liu clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg during the 2000 to 2001 session and was a member of the Obama-Biden transition team’s Education Policy Working Group. He’s also a board member of the ACLU-Northern California, the National Women’s Law Center, and the American Constitution Society. He graduated from Stanford University, won a Rhodes Scholarship to Oxford, was editor of the Yale Law Journal, and numerous other awards. His wife is a senior fellow at the Center for American Progress, a liberal think tank.

Liu was scheduled to come before the Senate Judiciary Committee on Wednesday. But Republicans employed an obscure tactical maneuver to block almost all Senate committee hearings from taking place—including Liu’s confirmation hearing. Their purpose is purportedly to exert some leverage on the bill of “fixes” to the just signed health care reform bill.

A spokesman for the Judiciary Committee said it’s impossible to predict when the Liu hearing will be able to proceed.

Groups appeal order to turn over documents in Prop 8 case

A snag in completion of the landmark Proposition 8 trial has now become a full-fledged entanglement. The issue? Whether three groups that are not a party to the Perry v. Schwarzenegger lawsuit can be forced to turn over their own e-mails and memoranda to the defendants in the case.

Judge Vaughn Walker
Judge Vaughn Walker

A snag in completion of the landmark Proposition 8 trial has now become a full-fledged entanglement. The issue? Whether three groups that are not a party to the Perry v. Schwarzenegger lawsuit can be forced to turn over their own e-mails and memoranda to the defendants in the case.

The defendants are the groups that sought and promoted the November 2008 initiative that amended the California constitution to ban same-sex marriage. Those groups were compelled to turn over their e-mails and memoranda to attorneys challenging the initiative in the U.S. District Court in San Francisco. In a sort of tit-for-tat move, the Yes on 8 groups filed a motion asking No on 8 groups to turn over their documents.

Proposition 8 trial Judge Vaughn Walker this week upheld the March 5 decision of a magistrate judge to order the No on 8 groups to turn over their documents that “contain, refer or relate to arguments for or against Proposition 8.”

One of the three groups—the Californians Against Eliminating Basic Rights (CAEBR)—said it believes it has already sufficiently complied with the motion. The two other groups—the ACLU and Equality California—challenged the magistrate’s motion, saying it would have a chilling effect on the willingness of organizations and individuals to participate in the political process.

In a 24-page opinion released Monday night, March 22, Walker said he believes the magistrate properly limited the documents that must be disclosed. He gave the groups until March 31 to produce the documents.

The ACLU and Equality California filed a motion Tuesday, asking Walker to delay his order while they appeal the decision to the 9th Circuit U.S. Court of Appeals.

The motion for stay says the order compelling they produce their internal communications to defendants in the case “implicate issues of a fundamental nature under the First Amendment with consequences not merely for this case but for future election campaigns of all sorts.”

The ACLU and Equality California brief seeking the stay argue that they—as third-party non-profit advocacy groups – are being “subjected to burdensome and invasive discovery as a result of their efforts to protect the civil rights for a politically unpopular group.”

Judge Walker is likely to rule very quickly on the request to delay is original decision. That decision maintained the magistrate judge’s deadline of March 31 for the groups to start turning over documents. He also moved back the deadline for defendants to submit to him any other evidence they wished him to consider in his deliberations over the Perry v. Schwarzenegger case—from March 26 to April 16. Walker indicated in January, following three weeks of testimony, that he would review the evidence submitted in the case before setting a date for closing arguments.

An earlier side-dispute in the litigation—one concerning the limited closed-circuit broadcast of trial proceedings to a number of courtrooms around the country—ended up before the U.S. Supreme Court. The high court, in a 5 to 4 decision, ruled that the trial proceedings could not be made public.

Student wins, but prom still off

A lesbian high school senior won a partial victory in a federal court in Mississippi Tuesday. U.S. District Court Judge Glen Davidson, a Reagan appointee, ruled that senior Constance McMillen, 18, had a First Amendment right to attend her senior prom with the date of her choice and wearing the clothes of her choice.

A lesbian high school senior won a partial victory in a federal court in Mississippi Tuesday. U.S. District Court Judge Glen Davidson, a Reagan appointee, ruled that senior Constance McMillen, 18, had a First Amendment right to attend her senior prom with the date of her choice and wearing the clothes of her choice.

Officials at Itawamba Agricultural High School in the small rural community of Fulton, Mississippi, first informed McMillen that she could not bring a female date to the April 2 prom and could not wear a tuxedo. When McMillen enlisted the aid of the ACLU to defend her rights, the local school board called off the prom. When it did, the ACLU filed a request in federal court for a preliminary injunction to stop them from doing so.

But Judge Davidson did not grant the preliminary injunction ordering the school to hold the prom but advised McMillen that she could sue for damages because of the violation of her constitutional rights. Continue reading “Student wins, but prom still off”

No gay provisions in health care

Rep. Tammy Baldwin acknowledged that the pro-gay provisions she sought in the health care reform legislation have not survived. But Baldwin also said that she has counted the votes in the House on two major pro-gay pieces of legislation and believes the votes for passage are there.

Tammy Baldwin
Tammy Baldwin

Rep. Tammy Baldwin (D-Wisc.) acknowledged Thursday, March 18, that the pro-gay provisions she sought in the health care reform legislation have not survived. But Baldwin also said, during an interview in Boston last weekend, that she has counted the votes in the House on two major pro-gay pieces of legislation and believes the votes for passage are there.

Baldwin had sought and secured four pro-gay provisions in the original House version of health care reform, including a prohibition on discrimination based on sexual orientation and gender identity in health care.

But neither the Senate bill nor President Obama’s proposal late last month included those provisions. Baldwin had held out hope, as late as Thursday morning, that at least two of the provisions might be added back under whatever legislative package the House and Senate would eventually vote on. But by Thursday afternoon, when the text of that final package was posted on the Internet, that hope was quashed.

The version of health care reform legislation being considered now by Congress—with the final critical votes scheduled to begin this weekend—does include some relief for people with HIV on Medicare who must purchase expensive AIDS-related medications. But it does not include the anti-discrimination provision or three others. Those others included the “Early Treatment for HIV Act,” which sought to allow states to provide Medicaid coverage to low-income HIV positive individuals; the Tax Equity for Health Plan Beneficiaries Act, which sought to end the tax for gay employees whose partners/spouses are covered under their work health insurance coverage; and a provision to collect data toward ending disparities in health care for LGBT people.

But Baldwin does believe the votes are in place to pass ENDA and a DADT repeal bill in the House.

“As someone who has actually counted the votes, I believe that there are,” Baldwin said, in response to a question during an interview in Boston. “That’s one of the things the LGBT Equality Caucus does is to [focus] attention to making sure we can tell [House] leadership, with accuracy, what the vote would be if they bring the measures up to the floor.”

The Congressional LGBT Equality Caucus is a group of legislators in the House who are strong supporters of equal rights for LGBT people. The Caucus is organized similarly to the Congressional Black Caucus and the Congressional Hispanic Caucus.

Baldwin and Rep. Barney Frank established the LGBT Equality Caucus in June 2008. It now includes nearly 90 members of Congress. President Obama has recently met with both the Congressional Black and Congressional Hispanic caucuses, but not yet the LGBT one. Baldwin says this is because “we haven’t put a spotlight on it of late.” She said the group “probably” would press for a meeting with the president “in the future.”

Pressure has grown dramatically in recent days for a spotlight on LGBT-related issues in Congress.

On Thursday, March 18, the same day Congress began reviewing a report from the non-partisan Congressional Budget Office estimating the costs of health care reform, gay civil rights activists, frustrated that Congress has yet to take a vote on ENDA or repealing DADT, staged peaceful acts of civil disobedience at both the Capitol and the White House.

Lt. Dan Choi, who is being discharged from the Army because he identified himself as gay, and former service member Capt. James Pietrangelo II handcuffed themselves to the wrought iron fence surrounding the White House. Both were arrested, along with Robin McGehee of a new group called GetEqual, who assisted them.

(A spokesperson for U.S. Park Police said Choi and Pietrangelo were held overnight and would be arraigned on Friday, March 19.)

McGehee is with a new group called GetEqual. The group has pledged to take “strategic, coordinated, bold action to demand equality, and to hold accountable those who stand in the way.”

That same afternoon, other activists with the group staged sit-ins in both the San Francisco and Washington, D. C., offices of House Speaker Nancy Pelosi. Capitol Police arrested four of the protestors at Pelosi’s Congressional office. San Francisco Police arrested six people.

Responding to the protests, Pelosi spokesperson Drew Hammill released a statement saying, “The Speaker believes passing ENDA is a top priority and hopes that we can bring ENDA up as soon as possible. That being said, the right time to bring the measure to the floor will be when we have the votes.”

It was during the Boston interview, five days earlier, that Baldwin said she had counted the votes on ENDA and DADT and believes the votes are there.

Baldwin was in Boston to receive an award from the Fenway Health organization March 13, a local LGBT community medical center. There, she acknowledged that health care reform has essentially held up all legislation in Congress in recent weeks, including the Domestic Partnership Benefits and Obligations Act. This Domestic Partnership bill seeks to provide equal pay for equal work in the federal workplace by granting to the domestic partners/spouses of gay federal workers the same health and life insurance, government pensions, and other employment related benefits provided to the spouses of straight federal employees who are married.

The bill, which garnered words of support from President Obama during one of his first Oval Office ceremonies for an LGBT issue last June, passed a House committee in November and a Senate committee in December. But neither House Speaker Nancy Pelosi nor Senate Majority Leader Harry Reid has moved it to the floor.

“I know [the Speaker] is supportive of the bill,” said Baldwin, “but right now, nothing moves until health care passes.”

Asked whether the LGBT community can expect a vote on ENDA and DADT this year even though mid-term elections are coming up, Baldwin said, “We want the votes [taken] as soon as possible.”

“Certainly there are members of Congress who are nervous because of the economy, the rate of joblessness,” she said. “Across the country, people are agitated. On the other hand, my constituents want to see bolder and quicker change, and so I actually see positive signs to follow through [on DADT and ENDA].”

Marriage inequality extracts a price on mental health

Same-sex marriage bans may be harmful to the mental health of gay people in those states. That is the conclusion of a new study published in the March issue of the American Journal of Public Health.

Deborah Hasin
Deborah Hasin

Same-sex marriage bans may be harmful to the mental health of gay people in those states. That is the conclusion of a new study published in the March issue of the American Journal of Public Health.

Deborah Hasin, professor of clinical epidemiology at Columbia University’s Mailman School of Public Health, and colleagues conducted their research by analyzing data from the National Epidemiologic Survey on Alcohol and Related Conditions (NESARC), a project of the National Institutes of Health.

NESARC is a nationally representative study that interviewed the same group of non-institutionalized U.S. adults in both 2001–2002 and 2004-2005. Hasin and her team used the NESARC data to determine whether lesbian, gay, and bisexual individuals living in the 14 states that instituted same-sex marriage bans in or just after the 2004-2005 elections had increased rates of psychiatric disorders as a result of the discriminatory policies. The researchers controlled for age, gender, race, ethnicity, income, educational attainment, marital status, and region.

Few previous studies had looked at the mental health effect of laws that deprive LGB people of rights. One prior study on the subject came to similar conclusions, but the current study stands out for using a large, nationally representative sample and for looking at the participants over a period of time. Additionally, the NESARC data allowed the researchers to measure mental health against very specific definitions in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).

They found that among the LGB population, the prevalence of mood disorders, generalized anxiety disorder, and alcohol use disorders increased significantly between the two waves of the study. Generalized anxiety disorder (GAD) showed the greatest increase, over 200 percent. GAD, as defined by the DSM-IV, is a state of long-term, excessive worry that causes clinically significant distress or impairment in social, occupational, or other areas of functioning.

The prevalence of any psychiatric disorder also increased slightly among heterosexual subjects in states that instituted same-sex marriage bans, but to a much lesser extent than among the LGB sample.

The researchers attribute the decline in mental health among the LGB population not only to the deprivation of rights, but also to the “extended and heated public discourse focusing on the legitimacy of such deprivation.”

Hasin, in an interview, said the costs go beyond individual harm.

“There’s a health care cost,” she said, “and any time people have psychiatric disorders with impairment in functioning, there are potentially costs in terms of their work productivity.”

Hasin and her co-authors at the New York State Psychiatric Institute, Harvard University, and Yale University, outline some remedies.

“Implementing social policy changes to abolish institutional forms of discrimination may ultimately reduce mental health disparities in LGB populations, an important public health priority,” they write. They cite the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and the legalization of same-sex marriage in Iowa as examples of such changes. Conversely, they say, California’s Proposition 8 “may have pernicious consequences for the health and well-being of the LGB community.”

Hasin said their study could be useful in legal cases that seek to overturn anti-gay laws.

“It is probably among the best types of evidence that you’re going to get,” she asserted, “because it is national and it does allow you to look closely at this.”

Jennifer Pizer, senior counsel and Marriage Project Director for Lambda Legal Defense and Education Fund, agreed that studies like this “are exceedingly useful and often critical for the work we do and for public health purposes.”

“It is immensely helpful to have top academic researchers quantifying and confirming these serious deleterious effects,” she said. Lawyers, she said, “don’t have the skills to be describing and measuring these effects as experts.” She and her colleagues, however, often give policy recommendations to legislatures and, in doing so, “We have to establish the need. We have to show the nature of the harm we have to stop.”

Pizer explained that experts in psychology and other social sciences, who have strong personal records from respected institutions, “can draw conclusions and offer opinions that can make an enormous difference in a trial.”

For example, she noted, Gregory Herek, professor of psychology at the University of California-Davis, assisted the APA with a brief in the 1993 Romer v. Evans trial that struck down an anti-gay amendment in Colorado and testified at this year’s trial on the legality of Proposition 8. One of Hasin’s colleagues at the Mailman School, Ilan Meyer, associate professor of clinical socio-medical sciences, also testified in the Proposition 8 case.

As for Hasin’s study, Pizer said, “Their finding is not a new scientific conclusion, but they have employed a methodology that will give it greater weight and context…. The focus on the harmful health effect of anti-gay ballot measures is timely and will have a positive impact.”

DADT repeal teeters on the mid-term elections

Google “Don’t Ask, Don’t Tell,” and you’ll get more than 2 million links. Add the word “repeal” to the search, and you’ll get about half a million. Add the words “this year,” and you’re down to 135,000.

That’s probably a good illustration of how the actual repeal process is going these days: Lots of people are talking about it, but the chances for success this year rely on a lot more things converging just so, and not too much.

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)

First of two parts (Part II)

Google “Don’t Ask, Don’t Tell,” and you’ll get more than 2 million links. Add the word “repeal” to the search, and you’ll get about half a million. Add the words “this year,” and you’re down to 135,000.

That’s probably a good illustration of how the actual repeal process is going these days: Lots of people are talking about it, but the chances for success this year rely on a lot more things converging just so, and not too much.

The plan on the table right now is two-pronged: first, some sort of intra-Pentagon relaxation of the enforcement of the current policy by, roughly, the end of this month. And then repeal of the policy at some point in the future.

Rep. Barney Frank (D-Mass.) says that future point will likely be on the Fiscal Year 2011 Defense Authorization bill which, last year, got its final vote in October. But Defense Secretary Robert Gates told a Senate Armed Services Committee last month that he sees Congress taking up the matter after the Pentagon does a study of the impact and how best to go about repealing the policy. He set December 1 as the report’s due date and, in a memo to the study group March 2, suggested the group might consider recommending “further study.”

In other words, repeal of “Don’t Ask, Don’t Tell” (DADT) this year is teetering on the mid-term elections.

While there is clearly more support for repeal of the policy this year than in the past 17 years of its implementation, DADT is still a contentious issue. Joint Chiefs of Staff Chairman Admiral Mike Mullen says it’s the “right thing to do,” his four Joint Chiefs say not now. The most recent national poll—by CNN February 12-15 of 1,023 adults—found 69 percent favor, 27 percent oppose, four percent were unsure. But that was a slip from 75 percent—in an ABC poll of 1,004 adults—the week before, just after Mullen’s remark was widely publicized. And Congress has deteriorated into a partisan combat zone and some Republican members of the Senate Armed Services Committee made clear they oppose repeal.

Repealing “Don’t Ask, Don’t Tell” is certainly have more opposition than did the hate crimes bill last year. The Senate needed 60 votes last summer to force the chamber to approve adding the hate crimes law to the Defense Authorization bill through unanimous consent; it got 63. Can the DADT repeal get 60?

Some things have changed. For one thing, Democrats lost one party vote last November to Republican Scott Brown from Massachusetts. Brown has not publicly stated his position, and he told Barbara Walters he hasn’t made up his mind. But he described the issue as one of “social change,” not discrimination, and two Massachusetts groups—the anti-gay Massachusetts Family Institute and the pro-gay MassEquality—say he supports keeping “Don’t Ask, Don’t Tell.”

Last year, the key Senate vote on hate crimes took place in July. But conventional wisdom in Washington is that legislators start running for re-election by the end of March and they often run to the political middle to ensure the widest base of support in the general election. That is not the direction that helps secure votes for DADT repeal in a Democratic majority Congress.

Democrats have a 77-seat advantage over Republicans in the House, and—if Independents usually vote with Democrats—an 18-seat advantage in the Senate. Trouble is, the Senate has become increasingly vulnerable to Republican filibuster. And since it takes 60 votes to break a filibuster, Democrats are feeling impotent with 59. And that’s if the vote on repeal takes place before the mid-terms. If it takes place after the mid-terms, it’s unclear what the political climate will be. Eighteen Democratic seats and 18 Republican seats are up for vote in November.

Yet another factor in gauging DADT repeal’s chances for success this year is Secretary Gates. He’s the man who named the membership for the Pentagon’s DADT working group—the group charged with coming up with a report on how repeal would impact the military and how it could be implemented.

While many news reports casually mention that Gates supports President Obama’s desire to repeal DADT, this reporter could find no statement from Gates himself saying that. A check with Cynthia Smith, a spokeswoman for Gates, turned up none. Asked whether Gates had ever made a statement for or against repeal, Smith said she could “only refer to the Feb. 2 testimony” before the Senate Armed Services Committee.

In that statement, Secretary Gates said: “We have received our orders from the commander in chief and we are moving out accordingly.”

Asked if there were any other statements, Smith said, “No other statement that I’m aware of.”

But Gates has made statements suggesting he’s not convinced Congress will pass a bill to repeal DADT.

In a little-publicized March 2 memo to the general counsel of the co-chair of his DADT working group, Gates repeatedly discusses repeal as something that might happen, not something he is charged with making happen.

“The Chairman of the Joint Chiefs of Staff [Admiral Mike Mullen] and I owe the President an assessment of the implications of such a repeal, should it occur,” wrote Gates.

“Should Congress take this action,” wrote Gates, “strong, engaged and informed leadership will be required at every level to properly and effectively implement a legislative change.”

The memo came just one day before a subcommittee of the House Armed Services Committee held a hearing on the DOD’s “process for assessing the requirements to implement repeal” of the military’s policy of excluding openly gay service members.

Discussing the memo at a routine Pentagon press briefing on Wednesday, March 3, DOD spokesman Geoff Morrell said, “We have always been very explicit about the fact that it is the president’s desire to repeal ‘Don’t Ask, Don’t Tell,’ and that desire is supported by the Secretary of Defense [and] by the Chairman of the Joint Chiefs.”

“The question for this [working group] panel,” said Morrell, “is don’t consider whether it’s a good thing or not. Don’t consider if this were to … happen. Go about this from the perspective of, this is the president’s desire; it is likely to happen. We need…to be prepared for that eventuality. We need to know more than we know now about what the potential impact would be. And we need to be armed with that information, so that we could work with the Congress to help inform the process that they undertake, if they undertake it.”

Next week: The Gates Report – is it a study or a stall?

DC marriage law in effect but trouble could lie ahead

A new law takes effect today in the nation’s capital, granting equal rights in marriage licensing for gay couples. Washington, D.C.’s marriage equality legislation becomes law in spite of a Herculean effort by opponents to block its implementation.

Aisha C. Mills and Danielle A. Moodie (Photo courtesy of Campaign for All DC Families)
Aisha C. Mills and Danielle A. Moodie (Photo courtesy of Campaign for All DC Families)

A new law takes effect today in the nation’s capital, granting equal rights in marriage licensing for gay couples.

Washington, D.C.’s marriage equality legislation becomes law in spite of a Herculean effort by opponents to block its implementation through both legal action—including a last minute Hail Mary pass to the U. S. Supreme Court and Chief Justice John Roberts for a stay—as well as legislative maneuvering in the House and Senate.

U.S. Supreme Court Chief Justice John Roberts on Tuesday evening denied a request to stop the District of Columbia’s new law from going into effect Wednesday, March 3. Marriage opponent Harry Jackson and others had petitioned the high court to intervene to stop the “Religious Freedom and Civil Marriage Equality Amendment Act” from taking effect until voters could address the issue through referendum.

While Roberts said he thinks the argument Jackson’s group makes “has some force,” he said the high court typically defers to the local courts concerning “matters of exclusively local concern.” He also noted that Congress, which has the power to review D.C. laws for 30 days before they take effect, took no action against the measure. And he pointed out that Jackson’s group still has the option to seek a ballot measure through an initiative process, rather than a referendum.

At 8:30 Wednesday morning, hundreds of same-sex couple began applying for licenses inside the Moultrie Courthouse where the D. C. marriage bureau is located, just blocks away from the U. S. Capitol.

No weddings will take place today, however, because of a mandatory three-day waiting period required of all couples marrying in the District. Accordingly, the first day couples can marry is Tuesday, March 9.

Even with a three-day wait, one couple in line for a marriage license—Aisha C. Mills and Danielle A. Moodie—could hardly contain their joy.

It feels “absolutely wonderful,” Mills said during a telephone interview. “We’ve had a committed, long-term relationship for six years now; and we knew we wanted to live our lives together.”

Why marriage?

“When you tell people you are married, there’s no explanation needed,” said Moodie. “When I say this is Aisha, my wife, people get right away. With domestic partnerships, you have to explain what that means.”

Additionally, getting married “is for us a safeguard as we make a family,” said Mills.

As early as 5 a. m., couples were lining up, Moodie said, speaking from her cell phone, with couples there “from every ward in the city.”

Mills and Moodie were number 11 in line.

Enacted by the City Council on Dec. 16, 2009, Religious Freedom and Civil Marriage Equality Amendment Act could not become law until after a 30-day congressional review period, a provision of the District’s home rule charter, a requirement for all but a few of city council’s legislative actions.

It was not assured a smooth sailing on Capitol Hill. Two measures were introduced in House of Representatives and another in the Senate to forestall full equality in marriage.

One bill introduced in the House of Representatives on January 31, 2010, sought to put “the marriage question to a referendum vote in the District of Columbia,” explained Sarah Warbelow, state legislative director for the Human Rights Campaign (HRC). But with only two sponsors, the bill “got nowhere,” she said.

An earlier House attempt, introduced on May 21, 2009, defined “for all legal purposes ‘marriage’ as the union of one man and one woman.” Even with nearly three dozen co-sponsors that bill also failed to gather momentum.

And yet another bill introduced in the Senate on Feb. 2, 2010, which had nine co-sponsors, sought to prevent the District of Columbia from issuing marriage licenses to same-sex couples until after a local referendum or initiative were held on the marriage question.

The Congressional attempts to override District marriage law failed for a number of reasons, said Brian Moulton, HRC’s legislative counsel—the biggest being that Democrats control both houses of Congress.

“Certainly there’s not much appetite among Democrats, even those opposed to marriage equality, to interfere with the affairs of D. C.,” said Moulton.

Mouton said he also thinks people “saw it as a bit of irony, wanting to put marriage up for a vote by the people of the District when the same [House] members oppose granting a voting member for the District in their own chamber.”

Moulton said he doesn’t think the law is “out of the woods” yet, noting that Congress has broad powers to meddle in D.C. government affairs. One possible scenario is marriage equality opponents attaching a rider to the D.C. appropriations bill to cut off any city spending related to issuance of marriage licenses to same-sex couples.

Opponents have waged a vigorous campaign to stop the bill for months. Last September, Harry Jackson and a coalition of religious and social conservatives petitioned the District’s Board of Elections and Ethics (BOEE) to allow an initiative to define marriage as “only the union of a man and woman is valid or recognized in the District of Columbia.” The Board ruled that initiative was not permitted under the city’s Human Rights Act (HRA) because it would authorize discrimination prohibited under the act.

In November, Bishop Jackson’s group sued in D. C. Superior Court, challenging the elections and ethics board decision. The petitioners claimed that the initiative does not violate the HRA and argued that subject limitation on initiatives violating the HRC is invalid in and of itself because such limitations violate the District’s charter.

The D.C. Superior Court upheld the Board’s ruling, Jackson’s coalition appealed to the D. C. Court of Appeals. Oral arguments are set for May 2010.

Meanwhile, implementation of the new marriage equality law makes Washington, D. C, the sixth jurisdiction—along with Connecticut, Iowa, Massachusetts, New Hampshire, Vermont—to issue licenses to same-sex couples. The District is also the first location for marriage equality below the Mason-Dixon line.

Even before the law took effect, marriage equality supporters began to celebrate, joining D. C. Delegate to Congress Eleanor Holmes Norton for a reception marking the end of the 30-day congressional review period, held at the Rayburn House Office Building, with music provided by the Gay Men’s Chorus.

“It’s a great day for the city,” Holmes Norton said, yesterday afternoon during a telephone press conference. This evening, “We’re gonna sing it from the hilltops.”

Chief Justice refuses appeal to stop D.C. marriage law

U.S. Supreme Court Chief Justice John Roberts on Tuesday evening denied a request to stop Washington, D.C.’s new marriage equality law from going into effect Wednesday, March 3.

Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)
Chief Justice John Roberts (Photo credit: Steve Petteway, Collection of the Supreme Court of the United States)

U.S. Supreme Court Chief Justice John Roberts on Tuesday evening denied a request to stop Washington, D.C.’s new marriage equality law from going into effect Wednesday, March 3.

Anti-gay marriage opponent Harry Jackson and others petitioned the high court to intervene in D.C. government and stop the “Religious Freedom and Civil Marriage Equality Amendment Act” from taking effect until voters can address the issue through referendum.

Roberts said he thinks the argument Jackson’s group makes “has some force,” it would not issue a stay of the new law. He said the high court typically defers to the local courts concerning “matters of exclusively local concern.” He noted that Congress, which has the power to review D.C. laws for 30 days before they take effect, took no action against the marriage equality measure. And he pointed out that Jackson’s group still has the option to seek a ballot measure through an initiative process, rather than a referendum.

The D.C. courts and its Board of Election ruled that a referendum on the marriage equality law would violate the city’s charter, which prohibits referenda on matters pertaining to the city’s human rights act. The group already has a petition before the D.C. Court of Appeals, concerning it request to hold an initiative to repeal the measure.

Roberts issued the decision in the case, Jackson v. D.C., because it came from D.C. and Roberts handles emergency petitions from the D.C. Circuit.

In January, Justice Anthony Kennedy, who handles emergency petitions for the 9th Circuit U.S. Court of Appeals, engaged the full court in handling issues on two cases implicated same-sex marriage controversies. In one case, a 5 to 4 majority of the full court blocked a plan by U.S. District Court Chief Judge Vaughn Walker to allow limited access to a broadcast of the trial involving a high-profile legal challenge of California’s anti-gay marriage initiative, Proposition 8. A few days later, the Supreme Court announced it would hear the appeal of anti-gay activists in Washington State who want to seal a public record which has the names of citizens who signed petitions to put a domestic partnership measure on the ballot last year. It takes four justices to agree to hear a case.

The Washington State case, Doe No. 1 v. Reed, is slated for oral arguments on April 28.

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 beyondstraightandgaymarriage.com 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.”

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.”

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.

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.”

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.

Terry Stewart: Invisible to many, a key player in trial

The fact that Therese Stewart didn’t get much publicity during the landmark federal court trial challenging Proposition 8 isn’t really a surprise: Lesbians do tend to be invisible.

Therese Stewart
Therese Stewart

SAN FRANCISCO – The fact that Therese Stewart didn’t get much publicity during the landmark federal court trial challenging Proposition 8 isn’t really a surprise: Lesbians do tend to be invisible.

But Therese (pronounced tuh-REZ) Stewart had a fairly visible role—right up there with the big guns of Ted Olson, David Boies, and Charles Cooper –the nationally known attorneys at the center of the publicity.

Stewart, known as Terry to family and friends, gave an opening statement for the City of San Francisco, right after Olson did for the plaintiff couples and Cooper did for the Yes on 8 defense. She provided direct examination of George Chauncey, an expert witness on the history of gay discrimination. And she’ll be giving a closing argument, too.

She was born in San Francisco in 1957 and grew up in Marin, thinking she might run for Congress someday. As a kid, she recalls, she put on a man’s suit and carried a briefcase that, in retrospect should have been a hint that she might grow up to be gay.

“But I didn’t figure it out til I was 24,” said Stewart. Her spouse, Carole Scagnetti, an attorney and head of Marriage Equality USA, teases her about that.

She was smart, as a kid, and liked theatre—and that, she says, evolved naturally toward a career in law.

She got her law degree at University of California at Berkeley and now supervises about 100 other attorneys in the City Attorney Dennis Herrera’s litigation office.

Herrara, Stewart, and a team of other attorneys from that office have been defending the city’s position that same-sex couples should be able to marry. It’s a legal battle Mayor Gavin Newsom engaged in February 2004, when he directed city officials to treat gay couples equally. And they’ve been involved in it long before this trial Perry v. Schwarzenegger. Stewart, in fact, delivered the oral argument for the city’s position before the California Supreme Court in 2008, winning the decision that led to same-sex couples being able to marry in the state.

She’s also been serving in an unofficial role as a sort of sounding board for several national gay legal organizations that are naturally very interested in the outcome of the trial. Those groups sought to be named as intervenors in the case but were rejected by U.S. District Court Chief Judge Vaughn Walker.

Stewart says she sees some representatives from the groups in the courtroom every day—such as Shannon Minter and Christopher Stoll of the National Center for Lesbian Rights—and she checks in with others, like Mary Bonauto of Gay & Lesbian Advocates & Defenders.

“We don’t want the right hand and left hand working at cross purposes,” explained Stewart, noting that GLAD has its own litigation concerning same-sex marriages, awaiting action in a federal court in Boston.

But she’s also clear that she and San Francisco attorneys are not setting strategy in the case. That’s the role of Olson and Boies and she seems very confidant about the work they’re doing. In particular, she praises Boies as “an amazing trial lawyer.”

“Nobody in the nation has the trial skills he has,” said Stewart.

She seems comfortable with the skills she has and, while she may not be all that visible in publicity surrounding this trial, she is well known to the gay legal community nationally and to the community here in San Francisco.

On a recent afternoon, as she was walking away from the federal courthouse in downtown San Francisco with rush hour traffic clogging up the intersection as she was preparing to cross the street, a man driving a large freight truck rolled down his window and yelled out to her.

“Hey!” he said. “I know you! Thank you for all you’ve done for us!”