Federal Court Hears Case on Interstate Recognition of Same-Sex Adoption

A federal circuit court heard arguments January 19 in a case that asks whether states must recognize adoptions by same-sex parents from other states–and the outcome could have “frightening” implications for the rights of adoptive parents.

Kenneth Upton

A federal circuit court heard arguments January 19 in a case that asks whether states must recognize adoptions by same-sex parents from other states—and the outcome could have “frightening” implications for the rights of adoptive parents, according to one of the attorneys arguing the case.

The case, Adar v. Smith, involves the refusal of Louisiana State Registrar Darlene Smith to issue a new birth certificate to a child born in Louisiana in 2006 but adopted in New York by a gay couple, Oren Adar and Mickey Smith. The men had requested a new birth certificate naming them both as parents—a common procedure for children adopted outside their birth states.

The registrar refused the new certificate, saying she was acting on an opinion from Louisiana Attorney General Buddy Caldwell, who said Louisiana does not owe full faith and credit to the New York adoption judgment because it violates Louisiana’s public policy of not allowing joint adoptions by unmarried couples.

The men, assisted by Lambda Legal Defense and Education Fund, filed a lawsuit in a federal district court. They argued that the registrar’s decision violated the Full Faith and Credit Clause and Equal Protection Clause of the U.S. Constitution.

Without the revised birth certificate, the men testified, it had been difficult for Smith to add their son to his health insurance. The couple also had difficulties with airline personnel, who suspected they might be kidnapping the child.

The district court ordered the registrar to issue a new birth certificate identifying both men as the boy’s parents. The state appealed to the 5th Circuit Court of Appeals, but a three-judge panel affirmed the district court ruling.

The Louisiana attorney general then appealed to the full Court of Appeals.

The oral argument before the full court was less about the merits of the case and more about whether it was indeed a federal case and whether the plaintiffs have the standing to bring it.

The state’s attorney, Stuart Kyle Duncan, argued that the Full Faith and Credit Clause is just a command to state courts not to re-litigate a case and that the clause cannot be used to secure an individual right. He also contended that the gay couple and their child did not suffer sufficient injuries to bring the case.

Lambda attorney Kenneth Upton argued that the his clients’ Full Faith and Credit claim is a federal claim under Section 1983 of Civil Rights Act of 1871, which allows people to sue in federal court if they feel their Constitutional rights have been violated by someone acting under state authority. And he told the 5th Circuit that the registrar’s refusal to issue a birth certificate, in itself, is a sufficient injury, because it “creates a significant barrier” to things like enrolling a child in school or health insurance.

In two similar previous cases, in Mississippi (2003) and Virginia (2005), state courts ruled that the state must give new birth certificates to children adopted by out-of-state same-sex couples. In the Mississippi case, the plaintiffs did not make any federal constitutional claims. The plaintiffs in Virginia did, but the court decided the case solely based on Virginia statutes.

In 2007, however, the U.S. 10th Circuit Court ruled that an Oklahoma law refusing to recognize adoptions by same-sex couples was unconstitutional, a case that Upton believes “provided a clear statement of what the law requires in a substantially similar factual setting.” That case, he said, was one of the reasons they filed the Adar case in federal court.

Upton said both Lambda and Louisiana have indicated they might seek review from the U.S. Supreme Court if they get an adverse opinion from the full 5th Circuit, but much, he said, will depend on the circuit court’s opinion and its reasoning.

The registrar’s claim has “frightening implications,” said Upton. “If a registrar can ignore an adoption for the purpose of issuing a birth certificate,” he said, “then can a law enforcement agency ignore your adoption for the purpose of reporting a kidnapped child, or letting you claim a found child? Can a medical provider . . . just refuse to recognize you as a parent and not let you direct a child’s treatment?”

“Even though it may seem like it’s only about a birth certificate here,” said Upton, “if state officials can disregard your parental rights for a birth certificate, what else is on the table?”

Obama calls for colleges to let recruiters in

Tuesday 10:15pm EDT edition – President Obama once again brought up the issue of gays in the military during his annual State of the Union address.

President Obama

Tuesday 10:15pm EDT edition – President Obama once again brought up the issue of gays in the military during his annual State of the Union address. Last year, he called for repeal of the federal law barring openly gay people from serving. This year, just a month after having signed a bill to repeal that law, the president urged universities which have barred military recruiters over the gay ban now allow recruiters back on campus.

“Our troops come from every corner of this country—they are black, white, Latino, Asian and Native American. They are Christian and Hindu, Jewish and Muslim. And, yes, we know that some of them are gay. Starting this year, no American will be forbidden from serving the country they love because of who they love.”

That drew applause.

“And with that change,” continued Obama, “I call on all of our college campuses to open their doors to our military recruiters and the ROTC. It is time to leave behind the divisive battles of the past. It is time to move forward as one nation.”

That drew a brief standing ovation.

Human Rights Campaign President Joe Solmonese welcomed President Obama’s words concerning the repeal of Don’t Ask, Don’t Tell, but added that “there remain a number of pressing issues for the lesbian, gay, bisexual and transgender community when it comes to economic security.”

“The President and Congress can do much more to ensure the economic empowerment of LGBT people including ending the unfair taxation of partner health benefits, prohibiting workplace discrimination on the basis of sexual orientation and gender identity, and ensuring that all married couples have access to the same federal benefits and protections for their families,” said Solmonese, in a statement released before the president delivered his address to Congress. “We look forward to working with this President and allies in Congress on the challenges ahead.”

But Robin McGehee, director of the activist group GetEQUAL, expressed disappointment.

“Tonight, President Obama missed an opportunity to lay out an agenda and strategy that continues progress made toward LGBT equality—removing the burden of being second-class citizens and acknowledging our families,” said McGehee, in a statement. “Sadly, while national hero Daniel Hernandez sat with the First Lady to witness this historic speech, he did not have the luxury of sitting there as an equal—for that, our elected officials should be ashamed. It is time for the President to put the power of the White House behind the passage of legislation that would give the right of full federal equality to LGBT Americans. As a community, it is our promise and our obligation to continue the work of holding both the President and Congress accountable for the inalienable human rights, dignities, and freedoms we all deserve.”

He did not, as some LGBT activists had urged, set a new goal for Congress—repeal of the Defense of Marriage Act (DOMA).

President Obama did include an openly gay man as one of his special guests in the House visitors’ gallery Tuesday night.

The man was Daniel Hernandez Jr., who was singled out by many news accounts as one of the heroes to take action during the January 8 shooting of Rep. Gabrielle Giffords in Tucson. Hernandez, who was serving as an intern in Giffords’ Tucson office, rushed to her side and provided first aid that many have said saved the Congresswoman’s life.

A number of Twitter messages from various people noted that Tuesday was also Hernandez’s 21st birthday. One Twitter message was from the account of Rep. Giffords, saying: “From the entire Giffords team: Happy 21st Birthday Daniel Hernandez! Sounds like you have fun plans tonight :)”

CNN indicated it was the first Twitter message from Rep. Giffords’ account since she was critically injured in a shooting January 8.  Giffords is still recovering from her wounds and is at a rehabilitation hospital in Texas.

Cameras scanning the gallery showed Hernandez early during the broadcast of the State of the Union. But Hernandez appeared to be standing near the back of the gallery, not seated near First Lady Michelle Obama, as expected.

In response to concerns about the hostile political environment, many members of Congress eschewed the usual seating arrangement of Republicans on one side and Democrats on the other, and sat together.

Three of the nine U.S. Supreme Court justices chose not to take seats at all and did not attend the State of the Union address. They were the three most conservative—Justices Antonin Scalia, Sam Alito, and Clarence Thomas.

HUD Announces Proposed New LGBT Anti-Discrimination Rule

The U.S. Department of Housing and Urban Development (HUD) announced proposed new regulations intended to ban discrimination on the basis of sexual orientation or gender identity in its core housing programs–programs that impact 4.4 million units of housing in the country.

Shaun Donovan

The U.S. Department of Housing and Urban Development (HUD) on January 20 announced proposed new regulations intended to ban discrimination on the basis of sexual orientation or gender identity in its core housing programs—programs that impact 4.4 million units of housing in the country.

The proposed new rule would:

  • Clarify that families who are otherwise eligible for HUD programs may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship.
  • Prohibit owners and operators of HUD-assisted or HUD-financed housing from inquiring about applicants’ sexual orientation or gender identity.
  • Prevent lenders from using sexual orientation or gender identity of an applicant as a basis to determine eligibility for Federal Housing Administration (FHA) mortgages. FHA mortgages represent one-third of all new mortgages in the country.

The first two policies above would apply to HUD’s rental assistance and home ownership programs, including FHA mortgage insurance programs, community development programs, and public and assisted housing programs.

In total, there are currently 4.4 million HUD-funded units of housing in the U.S., said a department spokesperson, including public housing, housing subsidized by the Housing Choice Voucher Program (Section 8 housing), and multi-family housing assisted by HUD funding.

HUD Secretary Shaun Donovan called the move “a fundamental issue of fairness” and said, in a press briefing, that he wants HUD to be a “leader” in the fight for LGBT equality, as it has been in other civil rights battles.

Last October, HUD announced its intent to institute the new rule as part of a series of measures to address housing discrimination against LGBT people.

HUD also announced last July a clarification of existing policy, stating that, although the Fair Housing Act—a pivotal civil rights act that prohibits discrimination based on race, color, religion, national origin, sex, disability, and familial status—does not specifically cover sexual orientation- or gender identity-based discrimination, it may still cover them in other ways. For example, gender-identity discrimination may be seen as sex discrimination.

HUD has also instructed staff to inform individuals about state and local LGBT protections that may apply to them. And HUD has told its grant applicants—who seek a total of $3.25 billion in federal funding—they must comply with such state and local laws, where they exist.

There are currently no explicit federal protections that ban housing discrimination based on sexual orientation or gender identity. Twenty states plus the District of Columbia have housing protections specific to sexual orientation, and 13 states plus the District have protections specific to gender identity. Approximately 150 cities, towns, and counties have LGBT protections as well, according to HUD.

No national study has quantified how many LGBT people have faced housing discrimination, although several smaller studies and examples have indicated pervasive discrimination, especially against transgender people and LGBT seniors.

HUD is now preparing a national study to fill this gap. The agency collected input for the study last year via a national listening tour and online submissions. A HUD spokesperson said the target date for reporting findings is late 2012.

HUD may additionally include LGBT discrimination in its decennial study of housing discrimination, which has, in the past, looked at racial- and ethnic-based discrimination.

There is also a move in Congress to prohibit discrimination against LGBT people in all housing, not just HUD programs. At the end of the last session of Congress, Reps. Jerrold Nadler (D-N.Y.), John Conyers (D-Mich.), and Edolphus Towns (D-N.Y.) introduced the Housing Opportunities Made Equal (HOME) Act, which would amend the Fair Housing Act to prohibit discrimination on the basis of sexual orientation, gender identity, source of income, or marital status in the sale, rental, financing, or brokerage of housing.

The bill would also expand the Fair Housing Act’s definition of “familial status” to include “anyone standing in loco parentis” to a minor—thus providing protection to same-sex couples and other families where one parent may not be legally recognized.

Individuals seeking redress under the Fair Housing Act may bring a lawsuit in federal district court or file an administrative complaint with HUD.

Ilan Kayatsky, a spokesperson for Nadler, said Nadler hopes to reintroduce the bill in this session of Congress “within the next couple of months.”

Nadler praised HUD’s proposed new rule in a statement, saying that he “[welcomes] the Administration’s more inclusive and expansive view of what defines an American ‘family.’”

With Republican control of the House this session, however, Nadler lost his chairmanship of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The new chair for the renamed Subcommittee on the Constitution is Rep. Trent Franks (R-Ariz.). Trent received a 0 percent score from the Human Rights Campaign for each of the past two Congresses, indicating he never voted in favor of legislation to further LGBT equality.

The proposed HUD rule must go through a 60-day period of public comment, January 24 to March 25. The date of publication for the final rule will depend upon the volume of comments received, but is expected by the end of 2011, said a department spokesperson.

Comments may be submitted via the Federal eRulemaking Portal at regulations.gov, or by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street, SW, Room 10276, Washington, DC 20410-0500.

Supreme Court refuses appeal by opponents of equal marriage in D.C.

The U.S. Supreme Court Tuesday refused to hear the appeal of a group of clergy in Washington, D.C., who want to put the city’s new marriage equality law on the ballot.

The U.S. Supreme Court Tuesday refused to hear the appeal of a group of clergy in Washington, D.C., who want to put the city’s new marriage equality law on the ballot.

The denial of review appears to the end of the line now for opponents of equal marriage rights in Washington, D.C.

Washington, D.C., enacted its marriage equality law in March of last year, but not before a group of clergy tried to stop the law from going into effect by requesting an emergency order from the U.S. Supreme Court. The high court refused that request, in Jackson v. D.C., but the group came back with this second effort aimed at undoing the marriage equality law.

What the group sought, in Jackson v. D.C. II, was a ruling from the high court saying the D.C. government could not bar an initiative regarding whether to repeal the marriage equality law.

The question before the Supreme Court, however, was not about marriage on the surface. On the surface, the question was whether the city’s law governing initiatives can bar voters from considering an initiative that violates the city’s human rights act.

Important to the case was the fact that Washington, D.C., is not a state but a unique District, controlled by the Congress to serve as the nation’s center of government. But in recognition of the needs of citizens who reside in the District of Columbia and who raise and school children there and require routine services such as fire and police protection, Congress, in 1973, provided for the formation of a D.C. Council to govern its citizens under a “Home Rule Act,” or D.C. Charter.

Congress also approved an amendment to the Charter, in 1978, that incorporated the D.C. Council’s laws spelling out how it would govern its own elections, including initiatives. The following year, the D.C. Council then approved the legislation necessary to implement that Charter amendment. And there lies the rub.

The implementing law—the Initiative Procedures Act—stipulated that the Elections Board “shall refuse to accept [a proposed initiative] if the Board finds that it . . . authorizes, or would have the effect of authorizing, discrimination” prohibited under the city human rights law.

The D.C. Human Rights Law prohibits discrimination based on sexual orientation so, when the group of clergy sought a ballot measure to overturn its marriage equality law, the city Board of Election refused to accept the measure, and the city’s highest court, the D.C. Court of Appeals, upheld that decision.

The Alliance Defense Fund, representing Harry Jackson, Walter Fauntroy, and the other petitioners, argued that this limitation violates the Charter itself, which provides for initiatives. And, after the D.C. Court of Appeals, its last resort was an appeal to the U.S. Supreme Court.

When the Alliance initially sought U.S. Supreme Court intervention, it filed a request for an emergency order to Chief Justice John Roberts, who handles emergency requests from the District of Columbia. Roberts denied that request last March and the marriage equality law went into effect on March 3, 2010.

But in denying the emergency request, Roberts said he thought the clergy coalition’s challenge to the restriction on initiatives had “some force.”

The clergy group took Justice Roberts’ note to heart and, with the help of the Alliance Defense Fund, a right-wing legal group, filed this new challenge. The new challenge argued that the decisions by the D.C. Courts “approved a Council-imposed limitation on the people’s Charter-based initiative power.”

The D.C. Court of Appeals, in upholding the D.C. Council’s right to include a limitation on the city’s initiative process, “allowed the Council to usurp a congressional grant of power,” argued the Alliance. And, said the group, it “bestows unapproved and extensive authority upon the Council to further erode the people’s initiative power, or otherwise alter Congress’s division of legislative power within the District of Columbia.”

“Congress is the source of all legislative power over the District,” argued the Alliance in its petition to the Supreme Court in October.

But Congress, dominated in both houses by Democrats, did not use its authority in December 2009 to disapprove of the D.C. Council’s passage of the marriage equality law. Nor did it disapprove of the D.C. Council’s establishment of a restriction on ballot measures, in 1979.

The Alliance argued that “Congress’s failure to reject or overturn” the restriction on D.C. initiatives “does not amount to implicit congressional approval of that measure.”

But attorneys for the D.C. government, in their brief opposing acceptance of the Alliance’s case by the Supreme Court, said the D.C. Council had authority to enact this restriction as part of the Charter amendment approved by both Congress and the voters of D.C. And they noted Congress had authority to disapprove of the Initiative Procedures Act but did not do so.

Further, the D.C. attorneys argued that the restriction on initiatives is a narrow one and that conflict before the high court was “of exclusively local concern” involving “no important questions of federal law.”

In order to hear an appeal at the U.S. Supreme Court, four justices must agree to take the case up for review and, generally speaking, the case must present a question concerning federal law. However, as in the case of California’s Proposition 8, state laws can end up in federal court when they are challenged as violating some federal constitutional provision.

Nan Hunter, a gay legal scholar who blogs at hunterforjustice.com, said that, if the Supreme Court had agreed to hear the Jackson case and overturned the D.C. Court of Appeals decision, the result would have been like “an East Coast rerun of Prop 8.”

9th Circuit punts key Prop 8 question to California Supreme Court

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday when it suddenly issued five documents relating to the case. But there was no decision Tuesday in Perry v. Schwarzenegger.

Ted Olson

A 9th Circuit U.S. Court of Appeals panel surprised many Proposition 8 observers Tuesday when it suddenly issued five documents relating to the case.

But there was no decision Tuesday in Perry v. Schwarzenegger, the landmark case testing whether voters in California violated the U.S. Constitution when they amended the state constitution to ban marriage licenses for same-sex couples.

The bottom line of the documents was that the three-judge panel that heard arguments in an appeal of the case punted a critical question regarding legal standing to the California Supreme Court.

The panel said it would not rule on the constitutionality of Proposition 8 until it gets a ruling from the California Supreme Court as to whether Yes on 8 proponents of the initiative have an “authoritative” entitlement to represent the voters who passed the initiative in the appeal in federal court.

The announcement frustrated and disappointed many.

“It is frustrating that this will slow the case down, especially since there is nothing in California law that gives initiative proponents the power to force an appeal when the official representatives of the state have determined that doing so is not in the best interests of the state,” said Shannon Minter of the National Center for Lesbian Rights.

The development struck some as odd. It appears the federal court is asking a state court whether Yes on 8 has standing to appeal a lower federal court ruling that struck down Proposition 8.

“I don’t think it was necessary to ask the California Supreme Court to rule on that issue,” said Minter, “and I am disappointed the Ninth Circuit did so.” But Ted Olson, a lead attorney on the team challenging Proposition 8, organized by the American Foundation for Equal Rights, said it’s not uncommon.

And it was not really a surprise to learn the panel is struggling with the question of standing. During oral argument on December 6, all three judges seemed troubled by the idea that a state governor or attorney general could, in essence, acquire an ability to veto a measure passed by voters by simply refusing to defend a challenge to its constitutionality in court. The California constitution does not provide the governor or attorney general a right to veto voter-passed initiatives.

Both Judge Stephen Reinhardt, widely perceived to be the most liberal of the panel, and Judge Randy Smith, the most conservative, seemed concerned that the governor and attorney general’s refusal to appeal the district court decision “does not seem to be consistent” with the state’s initiative system. Judge Michael Hawkins expressed frustration during argument that the panel might be prevented from rendering a decision about the constitutionality of Proposition 8 “so it’s clear, in California, who has the right to marry and who doesn’t.” The panel seemed prepared, on December 6, to ask the California Supreme Court to weigh in on the issue and it is a curiosity that it waited one month before actually doing so.

In its 21-page order to the California Supreme Court, the three-judge panel asked the state court to determine whether Yes on 8 proponents have “rights under California law … to defend the constitutionality of [Proposition 8] … when the state officers charged with the laws’ enforcement …refuse to provide such a defense.”

Olson, in a telephone conference call with reporters soon after the court released its order, said that, if the California Supreme Court determines that there is no authority under state law for Yes on 8 to have standing to represent voters in the appeal, the 9th Circuit would be bound to accept that determination. However, the ruling on standing could still be appealed to the U.S. Supreme Court, he said.

If the California Supreme Court determines Yes on 8 does not have standing and the 9th Circuit rules accordingly, then the decision of U.S. District Court Judge Vaughn Walker on August 4 will become the law throughout California, making it possible for same-sex couples to obtain marriage licenses.

Judge Walker ruled that Proposition 8 violates the U.S. Constitutional guarantees to equal protection and due process. Although neither the attorney general nor the governor provided any defense for the initiative during the trial last January, Walker did allow Yes on 8 proponents to intervene in the trial as defenders of the measure. But the appeals panel indicated that standing in the district court does not necessarily mean Yes on 8 has standing to appeal.

If Yes on 8 does appeal a loss on the issue of standing to the U.S. Supreme Court, and the high court rules in its favor, it would then most likely send the case back to the 9th Circuit for a ruling on constitutionality.

Meanwhile, among its other documents Tuesday, the 9th Circuit panel issued a 16-page opinion that Imperial County, California, does not have standing to appeal the district court decision itself. The panel said it was denying the county’s claim for standing on different grounds than did Judge Walker. The panel held that, because the county simply administers the state’s marriage law, it does not have any “interest on its own” to defend. The county has 14 days in which to appeal the panel’s ruling on standing.

The 21-page order released Tuesday said that having standing to defend Proposition 8 in federal district court does not necessarily guarantee that Yes on 8 proponents have standing in federal court. In one of several other documents released Tuesday, the panel denied an effort by Imperial County to gain standing to make the appeal.

The panel’s formal question to the California Supreme Court is: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

“If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative,” stated the order, “then Proponents would also have standing to appeal on behalf of the State.”

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents,” said the order, “and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.”

“It is not sufficiently clear to us, however, whether California law does so,” said the panel. “In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law.”

Today’s development will, of course, delay the 9th Circuit panel’s decision on the merits of the case—whether voters can withhold marriage licenses from gay couples while granting them to straight couples.

“Further delay in restoring the freedom to marry in California is a lamentable hardship on couples,” said Evan Wolfson, head of the national Freedom to Marry group. “But I am confident that we will regain the freedom to marry in California soon.”

NCLR’s Minter agreed.

“I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives,” said Minter. “In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage. This will delay,” he said, “but not deny, the day that Proposition 8 is gone for good.”

U.N. votes to restore ‘sexual orientation’ to resolution against killings

In an important win for LGBT people and U.S. international diplomacy, the General Assembly of the United Nations voted to restore a reference to “sexual orientation” in a resolution against the killing of vulnerable minority groups—a reference that had been removed only a month earlier.

Susan Rice

In an important win for LGBT people and U.S. international diplomacy, the General Assembly of the United Nations voted to restore a reference to “sexual orientation” in a resolution against the killing of vulnerable minority groups—a reference that had been removed only a month earlier.

The vote to restore explicit mention of sexual orientation came on December 21, with 93 member nations favoring restoration, 55 countries voting against, 27 nations abstaining, and 17 countries absent. The United States sponsored the measure.

On the same day, the General Assembly then approved the amended resolution, with 122 countries voting in favor, no nation voting against, and 59 abstentions, according to the Associated Press.

LGBT civil rights groups and human rights activists welcomed the vote, praising U.S. Ambassador to the U.N. Susan Rice for her forceful advocacy.

On December 10, International Human Rights Day, Ambassador Rice said, in a U.N. speech, that she was “incensed” over the earlier vote to remove sexual orientation from a human rights resolution on extrajudicial, summary, and arbitrary executions.  She vowed a U.S.-led push for its reinsertion.

“[We] applaud the principled leadership of the United States and other like-minded countries in restoring the language and staking out a clear claim for gay men and lesbians at the United Nations,” said Mark Bromley, chair of the Washington, D.C.-based Council for Global Equality, in a press release. The council advocates for American foreign policy inclusive of sexual orientation and gender identity, according to its mission statement.

“Protecting minorities from persecution is one of the United Nations’ most important functions,” said Todd Fernandez, a human rights lawyer and activist based in New York City. “U.N. leadership against anti-LGBT discrimination is now setting the tone for the world.”

Fernandez said that various international human rights treaties were written to include race, religion, and sex explicitly, but relegated sexual orientation to be implied under “other status.”

“Gradually, we are filling in this archaic gap in global consciousness and the Obama administration deserves credit for this,” said Fernandez.

Since 1999, the U.N. General Assembly has approved a bi-annual resolution on extrajudicial executions, urging nation states “to investigate promptly and thoroughly all killings,” including those “committed for any discriminatory reason,” including “sexual orientation.” The resolution is the only U.N. resolution explicitly mentioning “sexual orientation.” Although General Assembly resolutions are not legally binding, they do establish an international standard for a majority of the world’s nations.

In 2005, two teenage boys believed to be gay were hanged by Iran. Under Iran’s Islamic Penal Code of 1991, homosexual relationships are illegal, and sodomy is a crime punishable by death, according to the International Gay and Lesbian Association. The hangings were reported by BBC and Human Rights Watch.

As of May 2010, six other countries have laws allowing the execution of persons convicted of homosexual conduct, including Mauritania, Saudi Arabia, Yemen, Sudan, Somalia, and Nigeria, according to recently released publication of Human Rights Watch. And last fall, in Uganda, where a bill to broaden the criminalization homosexuality with death penalty provisions was introduced in Parliament, a newspaper published a list of prominent gay professionals, including names and addresses, with a call to “Hang Them.”

Back in November, when a U.N. committee voted on the extrajudicial resolution, a majority of nations voted to delete the reference to sexual orientation, yielding to pressure from some Arab and African member states to remove it. The vote was 79 to 70, with 17 countries abstaining and 26 nations not voting.

Removing that reference “felt like a stab in the back of homosexual people in countries where those killings do take place,” said Boris O. Dittrich, acting director of the Lesbian, Gay, Bisexual and Transgender Program of the Human Rights Watch, based in New York City.

Reinserting sexual orientation, he said, “could help put an end to the hateful killing of people based on their sexual orientation or gender identity.”

Following the U.N. reversal vote last week, the White House issued a statement applauding the outcome:

“Today’s vote in the United Nations marks an important moment in the struggle for civil and human rights. The time has come for all nations to redouble our efforts to end discrimination and violence against lesbian, gay, bisexual and transgender people.”

“No one should be killed for who they are,” said Secretary of State Hillary Clinton in a press release. “Sadly, many people around the world continue to be targeted and killed because of their sexual orientation. These heinous crimes must be condemned and investigated wherever they occur.”

Former U.S. Ambassador to Romania Michael Guest, now a senior adviser to the Global Equality Council, called the U.S. diplomatic effort “remarkable,” adding in a statement, “The United States took a very principled position, and our diplomats worked very hard at the U.N. and in capitals around the world to explain to other countries why this is an important human rights cause.”

National LGBT youth suicide prevention task force and grants announced

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

Charles Robbins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

North Carolina Ruling Jeopardizes Same-Sex Families

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

Paul Martin Newby
Paul Martin Newby

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senate confirms Feldblum for EEOC

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

Chai Feldblum
Chai Feldblum

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

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

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

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

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

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

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

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

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

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

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

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

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

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

President signs historic bill to repeal DADT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harry Reid
Harry Reid

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

House clears DADT repeal measure

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

Patrick Murphy
Patrick Murphy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LGBT housing bill faces long odds

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

Jerrold Nadler
Jerrold Nadler

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Third DADT lawsuit filed; SLDN threatens more

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

Aubrey Sarvis
Aubrey Sarvis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senate fails to bring DADT repeal to the floor

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

Harry Reid
Harry Reid

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

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

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

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

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

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

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

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

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

The final vote was 57 to 40.

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

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

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

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

DADT suspense continues: maybe tomorrow

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

Susan Collins
Susan Collins

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

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

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

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

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

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

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

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

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

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

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

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

Ted Olson
Ted Olson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“No,” said Cooper.

“Why not?” asked Hawkins.

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

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

“Yes,” conceded Cooper.

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

Cooper conceded that was probably true.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DADT Day 2: Repeal supported

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

Scott Brown
Scott Brown

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But supporters of repeal have taken the letter seriously.

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

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

Military leaders stand firm: For repeal

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

Admiral Mike Mullen
Admiral Mike Mullen

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

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

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

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

What is the question?

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

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

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

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

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

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

What is the difference?

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

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

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

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

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

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

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

What are the bottom lines?

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

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

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

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

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

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

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

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

Significant recommendations in DADT repeal report and fuzzy math on timing

Defense Secretary Robert Gates sent mixed signals Tuesday, in releasing the Pentagon’s long-awaited study about how to implement repeal of Don’t Ask, Don’t Tell. He said repeal “can and should be done,” but he urged Congress to consider the views of all-male combat units who expressed concern about negative consequences.

Robert Gates
Robert Gates

Defense Secretary Robert Gates sent mixed signals Tuesday, in releasing the Pentagon’s long-awaited study about how to implement repeal of Don’t Ask, Don’t Tell. He said repeal “can and should be done,” but he urged Congress to consider the views of all-male combat units who expressed concern about negative consequences. He said the concerns of those combat units were “not an insurmountable barrier” to repealing the ban on openly gay people in the military, but said the military should be given “sufficient time” to exercise “an abundance of care and preparation” in rolling out that repeal. And neither he nor any other top Pentagon official were willing to give even a vague estimate of how much time would be sufficient.

But in a statement released Tuesday evening, President Obama urged the Senate to act “as soon as possible,” saying he is “absolutely confident” troops “will adapt to this change and remain the best led, best trained, best equipped fighting force the world has ever known.”

The president reportedly spoke to Republican and Democratic leaders about “Don’t Ask, Don’t Tell” during a meeting at the White House yesterday to discuss a number of issues. Details of those discussions were not available.

Gates’ remarks and the report released by the Pentagon Tuesday on how best to implement repeal of Don’t Ask Don’t Tell (DADT) will provide both proponents and opponents of repeal plenty of political ammunition once the Senate takes up the issue sometime this month.

The 256-page study is called the Report of the Comprehensive Review of the Issues Associated with a Repeal of “Don’t Ask, Don’t Tell”. The report includes 20 pages of recommendations, presented in essay form, and 112 pages discussing and illustrating the results of surveys conducted of servicemembers and their families. Most media reports focused on the survey results, but the recommendations have, perhaps, the greatest importance for the LGBT community. The most significant of the recommendations include:

  • issuing “an extensive set of new or revised standards of conduct” for servicemembers while in uniform, including for such matters as “public displays of affection,” dress and appearance, and harassment, and that those standards “apply to all Service members, regardless of sexual orientation;”
  • that military law not add sexual orientation “alongside race, color, religion, sex, and national origin as a class eligible for various diversity programs or complaint resolution processes. Instead, the report recommends DOD “make clear that sexual orientation may not, in and of itself, be a factor in accession, promotion, or other personnel decision-making.” Complaints regarding discrimination based on sexual orientation would be addressed through “mechanisms” available for complaints other than those involving race, color, sex, religion, or national origin—“ namely, the chain of command…and other means as may be determined by the Services.”
  • repeal Article 125 of the Uniform Code of Military Justice to the extent it prohibits consensual sodomy, regardless of whether same-sex or heterosexual;
  • amend the code to “ensure sexual orientation-neutral application” with regards to sexual offenses. For instance Article 134, prohibiting adultery, would be rewritten to include a married female servicemember having sex with another woman who was not her spouse;
  • no separate housing or bathroom facilities for gay or lesbian servicemembers and no assignments of sleeping or housing facilities based on sexual orientation “except that commanders should retain the authority to alter… assignments on an individualized, case-by-case basis, in the interest of maintaining morale, good order, and discipline, and consistent with performance of mission;
  • no revision “at this time” of regulations to add same-sex committed relationships to the current definition of “family members” or “dependents” in regards to military benefits, such as housing, but to revisit the issue at a later date
  • review benefits “that may, where justified from a policy, fiscal, and feasibility standpoint,” be revised to enable a servicemember to designate “whomever he or she wants as a beneficiary;”
  • evaluate requests for re-entry into the military from those servicemembers discharged under DADT “according to the same criteria as other former Service members seeking re-entry; and
  • no release from obligations of service for military personnel who oppose serving alongside gay and lesbian service members.

The survey part of the report indicates:

  • 69 percent of servicemembers believed they had already served with someone they knew to be gay;
  • 70 percent to 76 percent said repeal would have “a positive, a mixed, or no effect” on task cohesion; and 67 percent to 78 percent said it would have positive, mixed or no effect on “social cohesion;”
  • 92 percent of those servicemembers who said they served alongside a gay person said they did not consider the gay servicemember’s presence to have created any problems for unit cohesion; and
  • 26 percent said they would take a shower at a different time than a gay servicemember.

The report noted that the responses of Marines Combat Arms units (fighting forces on the ground) were “more negative” than the forces overall concerning how gay servicemembers would affect unit cohesion. Overall, 21 percent said gays in the unit would negatively affect their unit’s readiness, but while 43.5 percent of Marine Combat Arms said so.

Both Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen also underscored a need to move slowly and carefully to implement repeal, should Congress approve it. In doing so, Gates highlighted a finding that between 40 percent and 60 percent of all-male combat arms and special operations units predicted a negative effect of repeal on unit cohesion. He said this finding was a concern for him and for the Chiefs of the various branches of service. And he urged Congress to consider this in its deliberations.

But Gates said he did not consider that finding to be an “insurmountable barrier” and said he does believe repeal “can and should be done without posing a serious threat to military readiness.”

Even before the report was officially released at 2:15 Tuesday, Servicemembers Legal Defense Network said it expected the report to be “overwhelmingly positive” and “one of the best tools that repeal advocates can use” in the lame duck Congress.

The report will be the subject of two days of hearings before the Senate Armed Services Committee on Thursday and Friday, December 2 and 3. Republican opponents of repeal, led by Senator John McCain (R-Ariz.) are expected to challenge the legitimacy of the study and to tweak out information within it to support their position against repealing the law.

Senator Lindsey Graham (R-SC), who had been considered a potential vote for repeal, surprised many over the weekend when he began to parrot a criticism of the study that McCain raised in recent days—that the Pentagon studied “how” to repeal DADT, not “whether” to repeal it.

Gates rebuffed this criticism previously and again during today’s press conference.

“This report does provide a sound basis for making decisions on this law,” said Gates. “It’s hard for me to imagine you could come up with a more comprehensive approach.” More than 400,000 servicemembers responded to a survey, as did thousands of family members. And Mullen said data “is very compelling.”

But Graham also told Fox News Sunday on November 28 that he doesn’t believe there is “anywhere near the votes” to repeal DADT “on the Republican side.”

Democrats don’t really need Republican votes to repeal DADT; it takes only 51 and, with Independents, they have 58. But many took Graham’s remarks to suggest that Republicans would stand together as a party to block the Senate from even considering the Defense Authorization bill that contains the DADT repeal language.

“I think we’ll be united in the lame duck,” said Graham of Republican senators. “. . . . So I think in a lame duck setting, ‘Don’t Ask, Don’t Tell’ is not going anywhere.

And that’s where the uncertainty lies: Will Democrats have 60 votes to break a Republican filibuster in order to begin deliberation on the FY 2011 Defense Authorization bill?

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, said he expects McCain and others to try and thwart repeal. He said he was hopeful Senate Majority Leader Harry Reid would be able to reach an agreement with Minority Leader Mitch McConnell on some number of amendments either party could offer on the annual Defense Authorization bill which contains the repeal language. Among those amendments, said Sarvis, will almost certainly be one to strip the repeal language from the bill, but Sarvis said he does not believe there are enough votes to do that.

Sarvis also made clear during a telephone press conference with reporters Tuesday morning that his group is not going to put all its eggs in the lame duck basket.

Sarvis said his organization would—“early next week”—file at least one lawsuit in federal court in San Francisco to continue pressure for eliminating the ban on openly gay people in the military. He said the group would likely file two more lawsuits soon after that. Each lawsuit, he said, would represent the interests of different groups affected by the law—those on active duty, those who have been discharged and seek reinstatement, and those who would like to join the service.

Gates and President Obama have both spoken out against lawsuits currently pending in the 9th Circuit seeking to challenge DADT—one from the Log Cabin Republicans (challenging the law on its face) and one from Air Force nurse Margaret Witt (challenging the law as applied). Both have been successful, thus far.

In an interview with ABC News, released November 9, Gates said he thinks the end of DADT was “inevitable.”

“My hope, frankly,” he said, “is that…if we can make the case that having this struck down by the courts is the worst outcome, because it gives us no flexibility, that people will think I’m called a realist, a pragmatist. I’m looking at this realistically. This thing is gonna go, one way or the other.”

In the end, it may take more than just one showdown vote in the Senate. In addition to needing 60 votes to begin debate on the defense spending bill, SLDN’s Sarvis said Tuesday he expects Senate Democrats will need 60 votes to force a vote an end to debate as well. Then a final version of the bill must be hammered out in a House-Senate conference committee and returned to both chambers for a final vote.