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.

Feds support new national LGBT youth suicide prevention task force

A national task force dedicated to suicide prevention among LGBT youth will be part of the new National Action Alliance for Suicide Prevention, a public-private partnership supported by the U.S. Department of Health and Human Services.

Pamela Hyde
Pamela Hyde

A national task force dedicated to suicide prevention among LGBT youth will be part of the new National Action Alliance for Suicide Prevention. The Alliance, launched by Secretary of Health Kathleen Sebelius and Secretary of Defense Robert Gates in September, is a public-private partnership supported by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA).

Pamela S. Hyde, administrator of SAMHSA, revealed the plan for an LGBT youth task force in a five-page letter sent November 5 in response to an inquiry from leaders of the U.S. House’s LGBT Equality Caucus.

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).

Robbins said in an interview that he thinks the Alliance could have a “broad impact” and “provide greater awareness and greater funding opportunities specifically for the LGBT community.” He said he participated in a similar effort in California and was able to ensure that LGBT youth were included in the plans and that county grants were LGBT inclusive.

The Alliance will, however, act as a coordinating body and not have independent grant-making authority, said Dr. Richard McKeon, Suicide Prevention Branch Chief at SAMHSA, in an interview October 19.

Hyde’s letter was in response to an October 26 letter from U.S. Reps. Jerrold Nadler (D-NY), Barney Frank (D-MA), Tammy Baldwin (D-WI), and Jared Polis (D-CO). They had written to Hyde to urge the agency to take “immediate action… to better protect LGBT youth and prevent further tragedies.” Their letter also questioned SAMHSA’s recent draft plan, Leading Change, and asked whether the agency is putting enough emphasis on “specific suicide prevention efforts” aimed at LGBT youth. They asked to be informed of SAMHSA’s current and planned activities in this regard.

In her response, Hyde, another of President Obama’s openly LGBT appointees, said SAMHSA “recognizes that LGBT youth face unique risk factors that make them vulnerable to suicide” and that the agency “will use its programs and initiatives to ensure a focus on LGBT youth.”

Specific SAMHSA efforts for helping LGBT youth, Hyde wrote, include the SAMHSA-funded Suicide Prevention Resource Center, which “includes LGBT youth as one of its priority populations.” The agency has also “produced publications and trainings geared toward improving awareness and capacity for suicide prevention for LGBT youth.”

SAMHSA’s National Suicide Prevention Lifeline, Hyde noted, “routinely refers youth to The Trevor Project.” The agency also directs funds to state, tribal, and campus suicide prevention programs through its Garrett Lee Smith grants, Hyde wrote, noting that currently nearly half of the 32 state grantees and nearly a third of the 68 campus grantees reported activities focused on LGBT youth.

Hyde said materials from the Human Rights Campaign’s Welcoming Schools program—designed to address family diversity, gender stereotyping, and bullying in elementary education—are included in resources given to grantees of SAMHSA’s Child, Adolescent, and Family Branch.

SAMHSA’s Annual Children’s Mental Health Conference this coming March will hold a workshop using the Welcoming Schools materials as well as anti-bullying resources developed by the Gay, Lesbian, and Straight Education Network (GLSEN). And a toolkit being developed by SAMHSA to help schools create suicide prevention programs will include materials from Trevor.

Additionally, Trevor will be invited to participate in SAMHSA’s National Workgroup on the behavioral health of LGBT youth and their families. The YES Institute, a Miami-based organization that trains providers, families, and others about suicide-related behavior in LGBT youth, is already taking part. The Workgroup, according to its Web site, will “help identify specific strategies and interventions” for caregivers and communities.

SAMHSA has also disseminated to staff and grantees recommendations from the Family Acceptance Project, a major academic study showing the connections between family rejection of LGBT youth and mental health problems, including depression and suicidal behavior.

Answering the representatives’ question about SAMHSA’s immediate next steps, Hyde wrote that she and leaders of the agency’s Sexual Gender Minority Interest Group recently met representatives of the National Coalition for LGBT Health, including Trevor, to plan ways of working together and including Trevor in some federal anti-bullying efforts.

To the representatives’ question about whether SAMHSA might need additional resources or legal authority to help with its efforts around LGBT youth, Hyde said no. She noted, however, that the attention on LGBT youth suicides has “mobilized SAMHSA staff and leadership across multiple Federal agencies to renew their commitment to these youth.”

Rep. Nadler, in a statement about Hyde’s reply, thanked SAMHSA for its “comprehensive response.” He called the agency’s “recommitment” and “increased focus” on suicide prevention among LGBT youth “encouraging.” He said he looked forward to seeing the “concrete steps” SAMHSA will take, and to working together with SAMHSA and other partners in the Obama Administration to ensure that they “achieve results.”

Levin poised to strip DADT repeal from defense spending measure

A key supporter of repealing Don’t Ask, Don’t Tell is poised to deal the legislation a significant setback. Sen. Carl Levin, chair of the Senate Armed Services Committee and a strong supporter of repeal, said he will hold hearings on the upcoming Pentagon study about implementation of repeal.

Carl Levin
Carl Levin

A key supporter of repealing Don’t Ask, Don’t Tell is poised to deal the legislation a significant setback.

Senator Carl Levin, chairman of the Senate Armed Services Committee and a strong supporter of repealing the law which bars openly gay people from serving in the military, said Tuesday he will hold hearings on the upcoming Pentagon study about implementation of repeal.

That study is due December 1 and Pentagon spokesman Geoff Morrell said last Friday that “no one at the Pentagon will comment” on the study’s contents until December 1.

Levin indicated, in his remarks to reporters Tuesday, that he is open to staging separate votes on DADT repeal and on the annual Defense Authorization bill, which currently contains the repeal language.

“The [defense spending] bill has 849 pages and only two of them are ‘Don’ t Ask, Don’t Tell,’” said Levin to reporters, according to a Washington Post account. “The rest have to do with our troops, they have to do with a whole lot of critically important things.”

Levin has hinted before that he might pull DADT repeal from the defense bill for stand-alone consideration and, following Tuesday’s comments, many now expect that is what he will do.

Passage as a stand-alone measure weakens the repeal’s chances in several ways. It puts it in a long line of pressing issues that are competing for Congress’ attention during the final weeks of the lame-duck Congress. And, even if Congress does take it up, the stand alone measure leaves repeal vulnerable to many more amendments from opponents who will likely seek to damage or undermine its intent.

On an optimistic note, Rep. Patrick Murphy, who championed the addition of DADT repeal language to the House defense authorization bill last spring, told the Washington Blade Tuesday that he believes the Obama White House and Defense Department will deliver a “full spectrum of engagement” to pass DADT repeal.

White House spokesman Shin Inouye said President Obama called Levin Wednesday to urge him to keep DADT repeal within the defense bill. Inouye said the call to Levin followed “outreach over the past week by the White House to dozens of Senators from both sides of the aisle on this issue.”

But Levin’s apparent readiness to acquiesce to Republican pressure—particularly from Senator John McCain, the ranking minority leader on the Armed Services Committee—is clearly a blow.

“This is no time to lose our resolve,” said Human Rights Campaign President Joe Solmonese, in a statement Tuesday. “Chairman Levin has been our advocate and we have every reason to believe that he will continue to push to end this unjust and discriminatory law. DADT came into being by way of the [defense spending bill] and it should be removed by the [defense spending bill] . This can and must get done.”

Levin’s comments came just one day after two relatively small and obscure groups that support repeal of the military’s ban on gays issued a statement urging the Senate to pass the annual defense authorization bill “whether or not the repeal of “don’t ask, don’t tell” is included.” A coalition of larger and better known LGBT groups issued a counter-statement saying, “Under no circumstances should DADT repeal be stripped from the underlying Defense Authorization bill.”

The Palm Center, a think tank which has been vigorously promoting repeal of DADT, initially supported the notion of allowing the defense spending bill to go through, even without DADT repeal language. But on Wednesday, it issued a statement suggesting Levin is being manipulated by McCain.

“Senator McCain is holding all military spending hostage in order to force Senator Levin to cut the repeal of DADT from the Defense Authorization bill,” said Palm Center Executive Director Aaron Belkin. Belkin called the defense spending bill the “best legislative vehicle for repeal” and said McCain’s goal is “continued discrimination of gay and lesbian service members….If repeal is not accomplished now, we could be looking at years of continued discrimination against loyal Americans serving their country.”

Two groups send mixed message on DADT repeal timing

When Congress came back to begin its lame-duck session on Monday, it was suddenly hearing mixed messages from LGBT groups concerning repeal of Don’t Ask, Don’t Tell.

John McCain
John McCain

When Congress came back to begin its lame-duck session on Monday, it was suddenly hearing mixed messages from LGBT groups concerning repeal of Don’t Ask, Don’t Tell.

Two relatively small and obscure groups that support repeal of the military’s ban on gays issued a statement Monday morning urging the Senate to pass the annual defense authorization bill “whether or not the repeal of “don’t ask, don’t tell” is included.”

The general circulation media immediately began reporting that there was a rift in the LGBT community over the issue and that the two groups—OutServe and Knights Out—had called for stripping DADT repeal from the FY 2011 Defense Authorization bill.

Reaction from many in the LGBT community was swift and harsh. Gay political blogger John Aravosis said it was an effort to kill DADT repeal. Blogger Pam Spaulding characterized it as a “bombshell.” And four groups—the Human Rights Campaign, Servicemembers Legal Defense Network, Servicemembers United, and the Center for American Progress—issued a joint statement Monday urging LGBT groups to “send one message” to Congress: “Repeal DADT Now.”

“Under no circumstances should DADT repeal be stripped from the underlying Defense Authorization bill,” said the statement. “That is simply a non-starter.”

A co-chair of one of the two groups that issued the original statement—OutServe and Knights Out—soon issued a clarification of his group’s earlier message.

“Nowhere do we call for repeal to be stripped from the [defense spending bill],” said a spokesperson, identified as JD Smith, a pseudonym for an active duty servicemember. Smith said that his fellow active duty service members had stood by him when he was under investigation under DADT “and risked their careers in order to protect me.” He criticized Senator John McCain, who has lead the filibuster against DADT repeal, as being willing to withhold necessary funding from all servicemembers in order to “perpetuat[e] discrimination against gay and lesbian service members.”

And Christopher Neff, deputy executive director of the pro-repeal Palm Center, issued a statement saying OutServe “should be commended for their principled stance in support of every service member no matter the outcome of the lame duck session.”

OutServe’s website identifies itself as a three-month-old organization which claims 1,000 active duty military members. The second group, Knights Out, says it has about 200 “members” affiliated with West Point academy.

The urgency of having Congress address DADT repeal in the lame-duck session was heightened by the November 2 mid-term elections. Republicans increased their numbers significantly in the Senate and took over the majority of the House. Those changes take effect in January.

But until then, both the Senate and the House, meeting in lame-duck session, are led by Democrats, most of whom support repeal.

Passage of DADT repeal is given little chance under a weakened Democratic majority in the Senate and no chance in a Republican House.

Senate Majority Leader Harry Reid’s office would not say when the defense bill might come up on the agenda but a spokeswoman hinted that a vote to try and break the current Republican-led filibuster could come as early as Friday.

The Senate came up three votes short in breaking the filibuster in September, but several Republicans said then that they did not want to vote on the DADT repeal until after seeing the Pentagon study, due December 1, on how repeal might be implemented. Anonymous sources leaked some news about the study last week, indicating that it shows few servicemembers would have difficulty with the change. That seemed to help momentum for repeal proponents.

In fact, Senator Susan Collins (R- Maine), a key Republican who supported the filibuster in September, joined Independent Joseph Lieberman in a letter to Defense Secretary Robert Gates on Monday asking for early release of the study.

“We are hopeful,” said Lieberman and Collins, “that release of the report and the opportunity for our colleagues to review its findings and recommendations will help inform their understanding and alleviate some concerns they may have regarding the military’s capacity to implement repeal of ‘Don’t Ask, Don’t Tell’ in a manner that is consistent with our armed forces’ standards of readiness and effectiveness, unit cohesion, and recruiting and retention.”

McCain told NBC Meet the Press on Sunday that he still opposes repeal and that Congress should have hearings to examine the Pentagon study before proceeding with a vote on repeal. Earlier, McCain was said to be in talks with Senator Carl Levin, chairman of the Senate Armed Services Committee, about stripping repeal language from the defense bill. The Grand Rapids Press, in Levin’s home state of Michigan, reported that Levin told reporters there that he hopes to pass the defense spending bill and DADT repeal, but “we just don’t k now if we can.”

Meanwhile, groups committed to repeal are stepping up pressure for a vote during lame duck. Get EQUAL, a relative new LGBT civil rights activist group, visited Senate Majority Leader Harry Reid’s office Monday morning. Later, 13 former veterans were arrested after they tied themselves to a fence in front of the White House, in an action aimed at urging Reid and President Obama to push for repeal of DADT.

High court denies to break DADT stay

In a move that did not catch anyone by surprise, the U.S. Supreme Court on Friday denied a request from attorneys for Log Cabin Republicans to vacate an order that enabled the military to continue enforcing Don’t Ask, Don’t Tell.

Anthony Kennedy
Anthony Kennedy

In a move that did not catch anyone by surprise, the U.S. Supreme Court on Friday denied a request from attorneys for Log Cabin Republicans to vacate an order that enabled the military to continue enforcing Don’t Ask, Don’t Tell.

The 9th Circuit U.S. Court of Appeals had, on November 1, granted the U.S. Department of Justice a stay of a lower court’s injunction against enforcement of DADT. Log Cabin filed a petition, asking the high court to vacate the stay, which had been in place since October 20—first as a temporary stay, then as a permanent stay until the federal appeals court can address DOJ’s appeal of a federal judge’s ruling that DADT is unconstitutional.

The two-sentence order issued Friday indicated that Justice Anthony Kennedy, who is responsible for disposition of such requests from the 9th Circuit, referred Log Cabin’s request to the entire bench. The order did not indicate a dissent by any of the justices but did indicate that the court’s newest member—Justice Elena Kagan—recused herself from the decision.

Log Cabin attorney Dan Wood said he would now ask the 9th Circuit to expedite consideration of the government’s appeal. A 9th Circuit panel is scheduled to hear arguments in the case in February and a decision is not likely until April or later. DADT will remain in effect during that time, absent some action by Congress to repeal the law sooner.

The Senate is expected to take up repeal language with the defense authorization bill, perhaps as early as next Wednesday (on a motion to break the current Republican-led filibuster). But even if the Senate does approve the repeal measure, it still has several more potentially difficult hurdles to clear—a House-Senate conference committee vote, votes again in the House and Senate on the committee’s final version of the legislation, and—assuming President Obama would sign it—a certification process and 60-day waiting period that could put the measure back before Congress yet again.

Meanwhile, Log Cabin Republicans has begun goading the White House over the lawsuit and repeal measure, criticizing DOJ for opposing its request to end the stay and claiming that the Obama administration has not dispatched anyone to press for passage in the Senate.

“President Obama remains far from the front lines of the fight for legislative repeal while commanding his lawyers to zealously defend ‘Don’t Ask, Don’t Tell’ in court,” said Log Cabin Executive Director Clarke Cooper. Cooper said Log Cabin this week “conducted meetings with numerous Republican senators potentially in favor of repeal, all of whom are waiting for the President’s call. The White House has been missing in action on Capitol Hill, undermining efforts to repeal [DADT] in the final session of this Congress, potentially leaving the judiciary as the only solution for our brave men and women in uniform.”

Notably, Justice Kagan’s recusal from the order at this point hints that she would likely recuse herself, too, from the case once it reaches the high court on the merits. Her recusal would set up the possibility of a tie vote in the high court, thus limiting the 9th Circuit’s decision—whatever it is—to the 9th Circuit.

DADT study leak mostly supports repeal

A 370-page Pentagon study on implementing repeal of Don’t Ask, Don’t Tell will report December 1 that repeal poses only minimal risk to current war efforts, according to an article posted Wednesday night in the Washington Post.

Robert Gates
Robert Gates

A 370-page Pentagon study on implementing repeal of Don’t Ask, Don’t Tell will report December1 that repeal poses only minimal risk to current war efforts, according to an article posted Wednesday night in the Washington Post.

The Post article is based on information provided to the newspaper from two people “familiar with a draft of the report,” according to Post reporters Ed O’Keefe and Greg Jaffe. The sources are not identified in the article. Asked if the reporters could convey a request from Keen News for follow-up, O’Keefe said Thursday morning that the sources “insisted we not contact them again.”

The article will almost certainly affect the momentum for repealing Don’t Ask, Don’t Tell (DADT) during the lame-duck Congress, as the potential for breaking a Republican-led filibuster hinges largely on 10 senators who said in September that they did not want to vote on the issue until the Pentagon study was available.

The Post said its sources provided details about “a draft” of the study that was distributed late last week to Defense Secretary Robert Gates, Joint Chiefs of Staff Chairman Admiral Mike Mullen, and leaders—both civilian and uniformed—of the four military branches. The details are overwhelmingly supportive of repeal.

According to the Post, the sources say the draft indicates that more than 70 percent of 400,000 servicemembers and 150,000 military spouses surveyed about repeal said effect of repeal would be positive, mixed, or nonexistent. The survey found that a majority had no strong objections, though a significant minority is opposed. But the study’s authors reportedly concluded that objections to serving alongside openly gay colleagues would drop over time. And it says that servicemembers who object to sharing a room or shower with openly gay troops should be handled on a case-by-case basis.

The study reportedly does not recommend any significant changes to military housing or benefits, saying that the federal Defense of Marriage Act (DOMA) prohibits recognition of same-sex spouses.

Although many political observers have suggested there is little to no chance that the lame-duck Congress will pass a defense authorization bill this year with the DADT repeal language intact, Rep. Barney Frank (D-Mass.) told the Washington Blade Monday that “Democrats are going to try very hard” to do so.

And in a telephone conference call with reporters Wednesday, Winnie Stachelberg, a key participant in meetings with the White House on the issue, said she thinks the strong statements from Senate Majority Leader Harry Reid and White House Communications Director Dan Pfeiffer in recent days have help put the repeal effort “in a solid position” during the lame-duck session of Congress.

Stachelberg, who is a vice president at the liberal think tank Center for American Progress, said pro-repeal activists need to focus on 10 senators who indicated during debate in September that they wanted to hear from the Pentagon study before taking a position on repeal. The Center’s 10 include Republicans Scott Brown of Massachusetts, Lindsey Graham of South Carolina, Judd Gregg of New Hampshire, John McCain of Arizona, Mark Pryor of Arkansas, Olympia Snowe of Maine, and George Voinovich of Ohio. It also includes Democrat Jim Webb of Virginia. And it includes two senators who will not take their seats until the new Congress convenes in January –Republican Mark Kirk of Illinois, whose election is still pending, and Democrat Joe Manchin of West Virginia.

The Human Rights Campaign also launched a grassroots campaign Monday to put pressure on senators from eight key states to support breaking the filibuster on DADT. Those states are Alaska, Arkansas, Indiana, Maine, Massachusetts, Ohio, Virginia, and West Virginia.

The House passed DADT repeal language in its version of the FY 2011 defense authorization bill last May, but the Senate was unable to take up a similar version of the bill in September when Republicans led a filibuster aimed primarily at DADT repeal.

Some unsourced reports suggested last week that Senator Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee and a supporter of repeal, was discussing with Senator McCain the possibility of stripping DADT repeal from the bill. But neither senator confirmed that report and, with unsourced reports, it’s hard to know what is really being discussed and what is simply a rumor being spread by one side or the other to create an appearance of inevitability to advance their own interests.

Stachelberg said Wednesday she believes the only real objections surrounding DADT repeal now are ones over procedure—how and when to repeal it, not substance. But she acknowledged that Congress must vote repeal this year because “next year would be very grim.”

HHS awards up to $22.4 million for suicide prevention

The U.S. Department of Health and Human Services (HHS) this month announced a grant of up to $22.4 million for suicide prevention, some of which will be used to address the needs of LGBT youth.

Pamela Hyde
Pamela Hyde

The U.S. Department of Health and Human Services (HHS) this month announced a grant of up to $22.4 million for suicide prevention, some of which will be used to address the needs of LGBT youth.

The grant came two weeks after leaders of the U.S. House’s LGBT Equality Caucus called on HHS to do more to stop suicides among LGBT youth, saying such suicides were “a serious public health problem which cannot wait.” But the grant was in progress long before the letter.

The money—from HHS’ Substance Abuse and Mental Health Services Administration (SAMHSA)—will re-fund the Suicide Prevention Resource Center (SPRC), which helps organizations and individuals develop suicide prevention programs and policies. The five-year grant will allow the Center, among other things, to increase its focus on high-risk populations such as LGBT youth, according to a press release.

Anara Guard, senior advisor at SPRC, said there was no way to break out how much money would go toward any one population or activity, because that was not how the grant proposal was written.

SAMHSA spokesperson Nancy Ayers noted the grant was not in response to the recent media attention surrounding a number of suicides by LGBT youth. Guard said the grant application process had begun in February, and funding began September 30 (although the public announcement came later).

On October 26, U.S. Reps. Jerrold Nadler (D-N.Y.), Barney Frank (D-Mass.), Tammy Baldwin (D-Wisc.), and Jared Polis (D-Colo.) sent a letter to SAMHSA Administrator Pamela S. Hyde, asking that the agency take “immediate action . . . to better protect LGBT youth and prevent further tragedies.”

Hyde is one of President Obama’s LGBT appointees.

The letter questioned SAMHSA’s recent draft plan, Leading Change, and asked whether the agency is putting enough emphasis on “specific suicide prevention efforts” aimed at LGBT youth. Suicides among this group, the representatives wrote, are “caused by a culture of bullying, hostility, and violence against the LGBT community. Young LGBT Americans thus face unique challenges which require specific and targeted prevention efforts.”

The representatives noted that Leading Change does mention an intention to address the needs of LGBT youth, but they are concerned that this is secondary to other objectives.

They ask Hyde to detail current and future plans in this area, and ask whether SAMHSA anticipates needing “additional resources or legal authority” to accomplish them.

“We want to be helpful,” said Ilan Kayatski, a spokesperson for Rep. Nadler.   “The intent is to urge them to do all they possibly can under their current authority and to ask them if they have everything they need.” He also said that some resources could come from existing programs, but they are prepared to “provide legal authority and additional resources through legislation if necessary.”

Dr. Richard McKeon, Suicide Prevention Branch Chief at SAMHSA, said in an interview October 19 that SAMHSA has several grant programs for preventing youth suicide, but none specific to LGBT youth.

He noted that SAMHSA’s National Suicide Prevention Lifeline works closely with the Trevor Project, which runs a suicide prevention lifeline for LGBT youth. It will even transfer calls from LGBT youth directly to Trevor. Charles Robbins, Trevor’s executive director, sits on the Consumer Subcommittee for the National Lifeline. But Robbins said the Trevor Project receives no money from SAMHSA.

The SAMHSA-funded SPRC was created in 2002 after the 2001 National Strategy for Suicide Prevention (developed under the Clinton administration) recommended such a center. It has taken several steps to address suicide risk and prevention in the LGBT community.

In 2007, it partnered with the Gay and Lesbian Medical Association and American Foundation for Suicide Prevention to host a conference on the topic.

SPRC then released a 63-page white paper in 2008 on suicide among LGBT youth. Guard said that after doing so, they had more speaking requests than they could accommodate. They are therefore now creating a Workshop Kit that draws from the white paper and is designed for people in schools and other youth-serving organizations. She expects the kits to be available this winter.

SPRC is also providing administrative and infrastructure support to the new National Action Alliance for Suicide Prevention. The Alliance, which officially launched on September 10, is a public-private partnership designed to advance and update the 2001 Strategy. Such a partnership was envisioned in the Strategy itself to help guide its implementation.

SAMHSA official McKeon acknowledged that it has taken some time for the Alliance to be created, but “We were really pleased by the people who stepped forward to make it happen now,” including SAMHSA Administrator Hyde, Secretary of Health Kathleen Sebelius, and Secretary of Defense Robert Gates.

In her speech at the Alliance kickoff, Sebelius noted that LGBT youth were a high-risk group.

Two notable members of the Alliance executive committee are Trevor’s Robbins and Kevin Jennings, now Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools (OSDFS) at the Department of Education. Jennings is also the founder of the Gay, Lesbian, and Straight Education Network (GLSEN).

Two more DOMA court challenges filed; five cases now pending

Two civil rights law firms on Tuesday announced the filing of two major lawsuits aimed at taking down the federal Defense of Marriage Act.

Mary Bonauto
Mary Bonauto

Two civil rights law firms on Tuesday announced the filing of two major lawsuits aimed at taking down the federal Defense of Marriage Act (DOMA). That brings to five the number of federal lawsuits now challenging the law banning recognition of same-sex marriage by the federal government.

The ACLU’s National LGBT Project filed suit in the U.S. District Court for the Southern District of New York to challenge DOMA’s treatment of Edie Windsor, the spouse of the late Thea Spyer, following Spyer’s death. The women had been together as a couple for 44 years and obtained a marriage license in Toronto, Canada, in 2007. Spyer died in 2009, following a long illness. But because DOMA prohibits the federal government from recognizing the marriages of same-sex couples, Windsor was not able to claim the estate tax deduction available to the spouses of straight married couples. The lawsuit is Windsor v. U.S.

Gay & Lesbian Advocates & Defenders (GLAD) filed suit in the U.S. District Court for the District of Connecticut on behalf of three lesbian couples and one gay man whose spouse recently passed away. The plaintiffs hail from Connecticut, Vermont, and New Hampshire. (Two other couples are to be added as plaintiffs at a later date—both from Connecticut.) This latest lawsuit, Pederson v. OPM, is similar to another, Gill v. OPM, that is on appeal to the 1st Circuit U.S. Court of Appeals. Both lawsuits argue that Section 3 of DOMA—which limits the definition of marriage for federal purposes to one man and one woman—violates the plaintiffs rights to equal protection of the law and is an improper intrusion of the federal government into state marriage laws.

Both organizations announced their lawsuits at 11 a.m. EDT Tuesday—the ACLU at the Gay & Lesbian Community Center in New York City, and GLAD at a hotel in Hartford, Connecticut.

Mary Bonauto of GLAD said her organization wants to “keep the pressure” on efforts to challenge DOMA and the harms it causes same-sex couples. She noted that the Pederson case, filed in Connecticut, would be appealed to a different circuit than the Gill case in Massachusetts. Pederson would be appealed to the 2nd Circuit; Gill has been appealed to the 1st Circuit. (New Hampshire is part of the 1st Circuit, noted Bonauto, but GLAD included a couple from that state because they were able to marry there beginning only this year, after the Gill case had already been filed.)

Edie Windsor lost her partner of 44 years, Thea Spyer, when Spyer died at age 77 in February of last year. Spyer had suffered for many years from multiple sclerosis. The two were married two years earlier in Toronto, and their relationship was the subject of a touching 2009 documentary, Edie and Thea: A Very Long Engagement, that has won numerous awards.

The two lawsuits filed today are now part of a five-lawsuit assault on DOMA. In addition to the two GLAD cases and the one filed today by the ACLU, the Commonwealth of Massachusetts’ case, Massachusetts v. HHS, challenges DOMA as a violation of the 10th amendment right of states to regulate such matters as marriage. And Lambda Legal Defense and Education Fund is representing a lesbian attorney who works for the 9th Circuit U.S. Court of Appeals to secure health benefits for her same-sex partner the same as are provided to attorneys married to opposite-sex spouses. That case is Karen Golinski v. OPM is waiting to be heard in the U.S. District Court in San Francisco.

In a politically controversial, yet expected, move, the Obama Department of Justice in October appealed both cases to the 1st Circuit.

In a strange twist, a Republican member of Congress filed a motion to intervene in the case to defend DOMA. Rep. Lamar Smith of Texas said the Obama administration’s defense of the law thus far had been “anemic arguments” and “faint-hearted advocacy.” Smith quietly withdrew that motion to intervene a week after DOJ filed its appeal to the first circuit, saying he could now provide the court with his arguments via a friend-of-the-court brief.

The ACLU lawsuit seeks to have DOMA declared as a violating of equal protection and to have refunded to Windsor federal estate tax she was required to pay following Spyer’s death.

Prospects for DADT repeal turn on Dec. 1 report

Four days after President Obama said there will be enough time, “potentially,” to repeal “Don’t Ask, Don’t Tell” during the lame-duck Congress, Defense Secretary Robert Gates told reporters that he is “not sure” what the prospects are for repealing it this year.

Robert Gates
Robert Gates

Four days after President Obama said there will be enough time, “potentially,” to repeal “Don’t Ask, Don’t Tell” during the lame-duck Congress, Defense Secretary Robert Gates told reporters that he is “not sure” what the prospects are for repealing it this year. And a Defense Department spokesman said, “I am not prepared at this time… to tell you what action we expect to take” once a Pentagon study on implementation of repeal is submitted December 1.

The bottom line: Prospects will continue to be uncertain until the Pentagon working group that has been studying how to best implement a repeal of Don’t Ask, Don’t Tell (DADT).

The House passed its repeal legislation inside the annual defense authorization bill, but the Senate has yet to take up the defense bill, in large part because Republicans have filibustered it over the DADT repeal language. It takes 60 votes to break that filibuster and Democrats came up three votes short in September.

Asked about the repeal’s chances now that Democrats have a much smaller majority in the Senate, President Obama repeated his oft-stated support for the change to come “in an orderly fashion,” but noted that polls indicate the “overwhelming majority of Americans” support repeal of DADT.

“I’ve worked with the Pentagon, worked with Secretary Gates, worked with Admiral Mullen to make sure that we are looking at this in a systemic way that maintains good order and discipline,” said Obama. “But we need to change this policy.”

The president said he expects Gates and the Chairman of the Joint Chiefs of Staff Admiral Mike Mullen “will have something to say” about the Pentagon study when it is submitted.

“I will look at it very carefully,” said President Obama. “But that will give us time to act in—potentially during the lame duck session to change this policy.”

Part one of the lame-duck session of the Senate runs November 15-19, with the potential for votes only on Wednesday through Friday. Congress breaks for Thanksgiving, then part two of the lame-duck sessions begins November 29 and runs until adjournment, which has not been defined beyond “when work is completed.” It could run until December 31.

At a press “availability” in Melbourne, Australia, where Gates was participating in a U.S.-Australia anniversary of ministerial meetings, a reporter asked him Sunday, “Do you see any prospect for passage of START [Strategic Arms Reduction Treaty] and repeal of ‘Don’t Ask, Don’t Tell’ in the lame duck?” Neither measure currently has 60 votes to break a Republican-led filibuster.

“I hope that the …Senate will ratify a new START,” said Gates. “I think it’s in our interest. Both the chairman and I have testified why we think it’s in our security interest to ratify the treaty.”

But his words regarding DADT were more guarded.

“I would like to see the repeal of ‘Don’t Ask, Don’t Tell,’ but I’m not sure what the prospects for that are and we’ll just have to see.”

DOD spokesman Geoff Morrell was asked a similar question during a Pentagon briefing last Thursday. He responded that “what Congress decides to do legislatively with regards to … [DADT] or any other issue for that matter, is largely their business.” He noted that the Pentagon working group preparing the report concerning how to implement repeal of DADT is “very much on track to meet that deadline.”

“So I think in… 26 days time, the secretary will have the work product that he thinks is so necessary for us to be able to fully understand the full implications of a repeal of [DADT] and then what additional measures we need to take for—in preparation for that eventuality.”

A reporter noted that Morrell seemed to indicate that DOD is “urging congressional action on START but not urging it on DADT. Morrell said “No,” but his follow-up comments and those of Gates Sunday seemed to suggest that DOD is less enthusiastic about pushing DADT repeal than START.

“Let’s let [the DADT repeal report] finish, let’s let the secretary get it and consider it, and then we’ll chart a course from there,” said Morrell.

A reporter asked Morrell whether DOD “might have more to say to Congress” about repealing DADT after studying the report.

“I am not prepared at this time… to tell you what action we expect to take upon receipt of the report,” said Morrell. “All I can tell you right now is … the working group is coming to a conclusion with its report. They expect to make the December 1st deadline, which was a very ambitious one the—the secretary put in place last February for consideration of the full ramifications of repeal across every aspect of how we do business in this department. So once the secretary gets it, I am sure that it will be a priority item for him to review and consider and then provide leadership for this department on how to move out based upon what the report tells us.”

The Wall Street Journal reported Monday (November 8) that Republican Senator John McCain, who has been leading the filibuster against DADT, is “in talks” with pro-repeal Senator Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee. The paper said they are talking about “stripping the proposed [DADT] repeal and other controversial provisions” from the defense bill. The Journal did not quote a source for that piece of information.

Aubrey Sarvis of the Servicemembers Legal Defense Network issued a statement Sunday saying, “Any talk about a watered down defense bill, whereby the ‘Don’t Ask’ revisions would be stripped out, is unacceptable and offensive to the gay and lesbian service members who risk their lives every day.”

During his comments last Wednesday, Obama also took another slam at a Log Cabin Republican lawsuit, pending in the 9th Circuit U.S. Court of Appeals. A federal district court judge ruled DADT is unconstitutional and the Department of Justice has appealed the decision. He said it “would be very disruptive to good order and discipline and unit cohesion …if we’ve got this issue bouncing around in the courts, as it already has over the last several weeks, where the Pentagon and the chain of command doesn’t know at any given time what rules they’re working under.”

“We need to provide certainty and it’s time for us to move this policy forward,” said Obama. “And this should not be a partisan issue. This is an issue, as I said, where you’ve got a sizable portion of the American people squarely behind the notion that folks who are willing to serve on our behalf should be treated fairly and equally.”

Meanwhile, on Friday, November 5, Log Cabin filed a petition with the U.S. Supreme Court, asking the high court to overturn a stay issued by the 9th Circuit U.S. Court of Appeals last Monday. That stay postponed enforcement of a federal district court judge’s injunction against enforcement of DADT until the 9th Circuit can rule on the government’s appeal of the district court decision.

Sponsoring LGBT Legislation No Harm to Electability

A number of LGBT allies lost their races in last week’s elections–but one bit of positive news is that sponsoring LGBT-rights legislation did not negatively impact a candidate’s ability to win.

Barbara Boxer
Barbara Boxer

A number of LGBT allies lost their races in last week’s elections—but one bit of positive news is that sponsoring LGBT-rights legislation did not negatively impact a candidate’s ability to win.

Three current senators who were lead sponsors of LGBT-rights legislation in the 111th Congress and were up for re-election all won their races: Barbara Boxer (D-Calif.), Patrick Leahy (D-Vt.), and Charles Schumer (D-N.Y.)

Thirteen of the fifteen representatives who were lead sponsors of LGBT-rights legislation and were up for reelection won their races: Tammy Baldwin (D-Wisc.), Donna Christiansen (D-V.I.), John Conyers (D-Mich.), Barney Frank (D-Mass.), Steve Israel (D-N.Y.), Carolyn Maloney (D-N.Y.), Jim McDermott (D-Wisc.), Jerrold Nadler (D-N.Y.), Jared Polis (D-Colo.), Laura Richardson (D-Calif.), Linda Sanchez (D-Calif.), Pete Stark (D-Calif.), and Edolphus Towns (D-N.Y.).

Two sponsors did lose: Pennsylvania Democrats Patrick Murphy and Joe Sestak. (Sestak was running for a Senate seat.)

Murphy, a former Army captain, was lead sponsor of a bill to repeal the military’s “Don’t Ask, Don’t Tell” (DADT) policy banning openly gay service members. It was incorporated as language in the Defense Authorization bill that passed the House in May but has yet to pass the Senate. Murphy also co-sponsored several other LGBT-rights bills, including two bills that would help protect students from bullying and discrimination on the basis of sexual orientation or gender identity.

Sestak, a former three-star admiral in the Navy, had been an outspoken supporter of DADT repeal. His campaign Web site stated that Sestak’s support of LGBT rights “is born out of his experience in the military,” where he served with lesbian and gay service members.

He also sponsored a bill to ban housing discrimination on the basis of sexual orientation or gender identity and was a co-sponsor on several other LGBT-related bills, including the Matthew Shepard Hate Crimes Prevention Act that passed last year.

Sestak and Murphy’s support of LGBT rights seem to have played no part in their defeats, however. Debates with their opponents focused on jobs and economic issues. Both Pat Toomey, Sestak’s opponent, and Mike Fitzpatrick, Murphy’s, tried to rally voters who were dissatisfied with the Obama administration’s—and by extension, the Democrats’—handling of the economy.

Toomey even agreed with Sestak in supporting a repeal of DADT, although Toomey said he first wanted to make sure military leaders agreed repeal would not interfere with their mission.

Looking back to earlier support for LGBT rights, four of the 14 senators who voted against the Defense of Marriage Act in 1996 were up for reelection this year. Three of the four won: Barbara Boxer (D-Calif.), Daniel Inouye (D-Hawaii), and Ron Wyden (D-Ore.). The only one to lose, Russ Feingold (D-Wisc.), was another victim of the wave of anti-Democrat sentiment across the country. Wisconsin voters also chose Republican Scott Walker to replace Democratic governor Jim Doyle, who did not seek another term.

GOP to dominate most state legislatures

Among the more dismal losses in Tuesday’s results was the one in New Hampshire, where Republicans won a veto-proof majority in both the state House and Senate.

It gets worse.

New Hampshire State House (Photo credit: Nicopoley, Wikimedia Commons)
New Hampshire State House (Photo credit: Nicopoley, Wikimedia Commons)

Among the more dismal losses in Tuesday’s results was the one in New Hampshire, where Republicans won a veto-proof majority in both the state House and Senate. That means that, while Democratic Governor John Lynch retained his seat—and the position to veto any of the legislature’s pending bills to repeal the state’s marriage equality law—there are enough votes now in both chambers to overturn that veto.

It gets worse.

Republicans took over the majorities in both chambers of the state legislatures in Wisconsin, North Carolina, and Alabama—states which had both houses dominated by Democrats going into Tuesday’s votes.

In Indiana, Ohio, and Pennsylvania, where only one chamber had a Republican majority, now both are dominated by Republicans. The Maine Senate, too, has switched from a Democratic to Republican majority, with Republicans holding a hefty 21 to 13 margin that would not likely approve a new marriage equality law. The Democratic-led Maine Senate passed such a bill in 2009 by a 20 to 15 margin but the law was overturned by voter referendum later that year.

And the National Conference of State Legislatures reports that the Minnesota Senate will now, for the first time in history, be controlled by Republicans.

In all 25 state legislatures are now completely dominated by Republicans, 16 by Democrats, four are divided between the parties. The majorities in four states are still undetermined and Nebraska’s has only a non-partisan.

“It was worse than I thought,” said openly gay State Rep. Jim Splaine in New Hampshire.  According to the NCSL, the state’s 400-seat House will next year be comprised of 296 Republicans and 104 Democrats. Its 24-seat senate will include 19 Republicans and five Democrats. Both easily exceed the two-thirds needed to overturn a veto.

The domination of Republicans in the legislatures is likely to mean a much more Republican Congress for the next ten years, as state legislatures in most states approve the lines for Congressional districts. Redistricting for those districts begins next year.

Iowa justices get the boot

All three Iowa Supreme Court justices up for retention this month have been given the boot. The vote sends a chilling message to other justices who face retention votes and must rule on the constitutionality of laws that adversely affect LGBT people.

scales

All three Iowa Supreme Court justices up for retention this month have been given the boot.

The Iowa Secretary of State website shows only 45 percent of voters said “Yes” to retention 55 percent said “No.”

The vote sends a chilling message to other justices who face retention votes and must rule on the constitutionality of laws that adversely affect LGBT people.

Chief Justice Marsha Ternus and Justices David Baker and Michael Streit agreed with a unanimous opinion of the seven-member bench that ruled in 2009 that the state constitution requires gay couples be treated the same as straight couples when it comes to marriage licensing.

The three justices issued a joint statement, saying it had been their “great privilege” to serve and that they had tried to uphold the law. They urged Iowans to support the state’s “merit selection system for appointing judges.”

“This system helps ensure that judges base their decisions on the law and the Constitution and nothing else,” said the statement. “Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”

Justices in Iowa are appointed by the governor but must stand for “retention” at the end of their first year and the end of each eight-year term. Groups unhappy with the 2009 ruling turned the retention election for into a referendum on same-sex marriage. Those groups included the anti-gay American Family Association, the Family Research Council, and the National Organization for Marriage (NOM).

The Des Moines Register reported last week that NOM has spent $200,000 in television ads to oppose the justices’ retention.

Another coalition—a bipartisan one—formed to support the justices’ retention. It was headed up by Republican former Governor Robert Ray and Democratic former Iowa First Lady Christie Vilsack.

The Register quoted a Vanderbilt University law professor last week as saying “It is virtually unheard of for a judge to lose a retention race.” In fact, noted the Register, this is the first time voters have chosen not to retain a justice.

The paper said that exit polls indicated that voters based their decision on the court’s decision in the gay marriage case.

Interestingly, noted the Register, state district court Judge Robert Hanson, who issued the initial ruling for marriage equality that led to the state supreme court appeal, was retained in voting Tuesday with 66 percent voting yes. Another judge, Scott Rosenberg, who signed a waiver that enabled one gay couple to obtain a marriage license in Iowa before Hanson’s ruling was stayed, was retained with 69 percent of the vote.