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.

Openly gay candidates: Some surprise victories in 164 races

The results for some high profile openly gay candidates are often mixed, and they were Tuesday night–with nine of eighteen openly LGBT candidates winning. But there was one big surprise Tuesday night and one shining star.

Barney Frank
Barney Frank

The results for some high profile openly gay candidates are often mixed, and they were Tuesday night—with nine of eighteen openly LGBT candidates winning. But there was one big surprise Tuesday night and one shining star and, overall, the Gay & Lesbian Victory Fund reported that 106 of the 164 openly gay candidates running Tuesday won their races.

The big surprise came in Lexington, Kentucky, where openly gay construction company executive Jim Gray won election as mayor. The Lexington Herald-Leader reported the news shortly after the polls closed at 6 p.m. Gray has been serving as the city’s vice mayor and defeated incumbent mayor Jim Newberry. The paper said the campaign has been one of the most expensive in the city’s history and only the second time in history that a sitting mayor has been defeated. The ballot in Lexington does not indicate party affiliation. According to results published by the Herald-Leader, Gray won with 53 percent of the vote, to Mayor Jim Newberry’s 46 percent. The Herald-Leader noted that Gray lost a bid for mayor in 2002, when his sexual orientation was not public. Gray came out before running successfully for an at-large seat on the Urban County Council.

In another southern state, North Carolina, openly gay candidate Marcus Brandon of High Point won his first-time run for state representative and, in doing so, becomes the state’s first openly gay member of the house. (Julia Boseman was the first to the legislature, as state senator.) According to the Gay & Lesbian Victory Fund, Brandon also becomes only the fifth openly gay African-American to a state legislature anywhere in the country. As of 10:30 Tuesday night, three hours after polls closed, the state Board of Elections showed Brandon with 70 percent of the vote, compared to Republican Lonnie Wilson. The race was to represent North Carolina’s District 60, which encompasses Guilford County in the middle of the state. Brandon told the News-Record newspaper of Greensboro that his sexual orientation was not a secret but that “This is not something I wanted to take over my campaign.”

“Nobody in a year-and-a-half ever asked me about my sexuality,” Brandon said, in an October 15 blog by an editorial writer in which the paper noted his race was one of the Gay & Lesbian Victory Fund’s “Ten Races to Watch” this year.

Laurie Jinkins has won her bid to the Washington State House, and becomes its first openly lesbian state lawmaker. Another lesbian, Nickie Antonio, won an unopposed race for the Ohio state house, making her that state’s first openly gay state legislator.

U.S. Rep. Barney Frank won re-election to a 16th term as Massachusetts Congressman from the 4th District. Frank won against an aggressive Republican challenger, Sean Bielat, who had a surge of out-of-state funding in the final days of the campaign to fuel a flood of campaign literature and robo-calls. While Frank’s re-election was considered predictable, the margin of victory represents a significant drop in support for Frank. Frank garnered only 54 percent of the vote Tuesday, dropping well below his previous lowest re-election take of 68 percent in 2008. The returns almost guarantee an even tougher re-match against Bielat in 2012.

U.S. Rep. Tammy Baldwin (D-Wisc.) won re-election to a seventh term with 62 percent of the vote, down just a few points from her previous re-election margin. U.S. Rep. Jared Polis (D-Colo.) won a second term with 56 percent of the vote.

Providence, Rhode Island’s openly gay mayor, David Cicilline, won his bid to represent the 1st Congressional District in the U.S. House. The win will make him the fourth openly gay member of the Congress. With all precincts counted, Cicilline had secured 50.6 percent of the vote, compared to Republican John Loughlin’s 44.5 percent, and 4.9 percent for two other candidates.

In Connecticut, openly gay health care advocate Kevin Lembo appears to have won his race for the state comptroller’s seat, taking 52 percent of the vote to Republican Jack Orchulli’s 44 percent. The win makes Lembo the only openly gay candidates to win a statewide race Tuesday night.

And Victoria Kolakowski appears to have won election as a judge on the Superior Court of Alameda County, California, becoming the first transgender trial court judge in the country.

But there were losses, too.

Two openly gay candidates lost their bids for seats in the U.S. House. Democrat Ed Potosnak, a teacher and businessman, lost his bid to unseat Republican incumbent Leonard Lance in New Jersey’s 7th Congressional district. Potosnak had been given very little chance of winning in his first run, but still pulled in 40 percent of the vote. And Steve Poughnet, the openly gay mayor of Palm Springs, California, garnered 40 percent in his first run for Congress against incumbent Republican Mary Bono Mack.

Two openly gay candidates for lieutenant governor lost as the head of their tickets fell to defeat.  Steve Howard lost as the number two person on the Democratic ticket in Vermont. And Richard Tisei lost as part of the Republican ticket in Massachusetts, where incumbent Democratic governor Deval Patrick won re-election with 49 percent of the race, against Republican Charlie Baker’s 42 percent, and Independent Tim Cahill’s 8.

And openly gay Republican Ken Rosen appears to have lost his bid to represent Michigan’s 26th District in the state house. At 11:23 Tuesday night, early results showed Rosen with 44 percent of the vote, trailing Democrat Jim Townsend who has 53 percent.

LGBT Election Night Scorecard

LGBT Election Night Scorecard

LGBT Election Night Scorecard
Best Case Scenario Current Status Forecast Based on Polls Actual Results
1 Democrats keep the U.S. House 20 20 0 0
2 Democrats keep the U.S. Senate 20 20 20 20
3 NH retains Democratic House and Senate 10 10 5 0
4 NH retains Democratic governor 5 5 5 5
5 California elects Democratic governor 5 0 5 5
6 California elects Democratic Atty Genl 5 5 0 0
7 All 3 Iowa justices retained 5 5 5 0
8 Cicilline wins U.S. House seat (R.Is -1st) 5 0 5 5
9 Pougnet wins U.S. House seat (CA-45th) 5 0 0 0
10 Frank re-elected with 65% or more 5 5 5 0
11 Maine elects Democratic or Independent governor 5 5 0 0
12 New York elects Democratic governor 5 5 5 5
13 Minnesota elects Democratic governor 5 0 5 5**
LGBT political climate score* 100 80 60 45
*100 = relatively favorable for LGBT equality

0 = significantly unfavorable for LGBT equality

**Race as of Wednesday morning has not been called. Democrat Mark Dayton leads with 43.7 percent of the vote over Republican Tom Emmer with 43.2 percent

©2010 Keen News Service

9th Circuit: DADT stay continues

The 9th Circuit U.S. Court of Appeals on Monday granted the government’s request to permanently delay enforcement of a lower court order to stop enforcement of Don’t Ask, Don’t Tell (DADT).

R. Clarke Cooper
R. Clarke Cooper

The 9th Circuit U.S. Court of Appeals on Monday granted the government’s request to permanently delay enforcement of a lower court order to stop enforcement of Don’t Ask, Don’t Tell (DADT).

The announcement was a blow to activists who have been working against the federal law banning gays from the military, because it means the military can continue to investigate and discharge openly gay servicemembers under the law at least until the legal challenge has been resolved. While that is likely to be many more months, it is unclear how much impact the permanent stay will have on the number of discharges. On October 21, the Pentagon issued revised guidelines that require any discharge under DADT must now be approved by a Secretary of the military branch involved. That, in and of itself, was expected to slow or reduce discharges under the law.

The permanent stay puts more pressure on both President Obama and Congress to take action. Activists have been calling on the president to issue a “stop-loss” order—something he has authority to do during wartime—to end discharges, pending repeal of the law. The Senate is expected to take up debate on repeal during consideration of an annual defense spending measure, when Congress reconvenes in mid-November.

But it is only a minor setback for the Log Cabin Republicans’ lawsuit challenging the law. A U.S. District Court judge ruled in September that the law is unconstitutional, but the U.S. Department of Justice is appealing that decision to a 9th Circuit panel. The panel is expected to hear arguments on that appeal in February.

“Log Cabin Republicans is disappointed that ‘Don’t Ask, Don’t Tell’ will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform,” said R. Clarke Cooper, executive director of Log Cabin Republicans, in a statement to press Monday night. “Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers’ constitutional rights.”

And though Cooper did not mention it, it’s very likely that Log Cabin attorneys will appeal the permanent stay order to the U.S. Supreme Court. That, however, is considered a long-shot effort.

The eight-page order cited the imperative of judicial deference “when Congress legislates under its authority to raise and support armies.” It also noted that federal district court Judge Virginia Phillips’ decision is “arguably at odds with the decisions of at least four” circuit court decisions around the country.

“We conclude that the public interest in ensuring orderly change of this magnitude in the military—if that is what is to happen—strongly militates in favor of a stay,” stated two of the three judges.

“Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.”

One judge dissented in part—William Fletcher, a Clinton appointee. He would have granted the stay of Judge Phillips’ decision in regards to discharges, but enforce the policy elsewhere—such as in recruiting practices and personnel manuals.

“Today’s ruling means additional months or even years of needless suffering by lesbian, gay and bisexual service members, who must continue to live in fear of discovery until the appeals process is complete – or until Congress or the President steps up to the plate,” said Peter Renn, an attorney with Lambda Legal Defense and Education Fund, which has filed an amicus brief in the case. “But it’s important to remember what today’s ruling was not:  a consideration of the merits of the case. That remains for another day.”

Obama: LGBT disappointment not justified

President Obama said Wednesday (October 27) that he doesn’t think the “disillusionment” that some in the LGBT community have for his administration thus far is “justified.”

President Obama
President Obama

President Obama said Wednesday (October 27) that he doesn’t think the “disillusionment” that some in the LGBT community have for his administration thus far is “justified.” He also refused to say whether he believes “Don’t Ask, Don’t Tell” is unconstitutional. And he said he has a strategy for getting the military ban on gays repealed in the lame-duck session.

The remarks came during a 45-minute group interview with a group of five progressive bloggers. Only one of the five was gay –Joe Sudbay who blogs at americablog.com. The interview took place in the Roosevelt Room of the White House, a daily meeting room next to the Oval Office.

The interview took place just one day after the President “dropped by” a meeting between senior White House officials and 10 LGBT activists discussing strategy for passing DADT repeal language during the lame-duck Senate next month.

Sudbay told the president “there is a certain amount of disillusionment and disappointment in our community right now.” And he asked whether President Obama thinks DADT is unconstitutional.

“It’s not a simple yes or no question, because I’m not sitting on the Supreme Court,” said Obama, who, ironically, taught constitutional law at the University of Chicago Law School before running for the U.S. Senate. Obama suggested his reluctance to answer the question was out of respect for the different roles played by Congress and the Supreme Court.

“But here’s what I can say,” said Obama. “I think ‘Don’t Ask, Don’t Tell’ is wrong. I think it doesn’t serve our national security, which is why I want it overturned. I think that the best way to overturn it is for Congress to act.”

The House has passed language to repeal DADT in the annual defense authorization bill. The language included a provision that requires the president, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff to sign a statement “certifying” that the repeal will not have a negative impact on the military’s readiness. But the same measure was blocked in the Senate after Republicans –led by John McCain—staged a filibuster. Democrats came up three votes short of the 60 needed to break the filibuster.

Then, President Obama addressed the “larger issue…about disillusionment and disappointment.”

“I guess my attitude is that we have been as vocal, as supportive of the LGBT community as any president in history,” said Obama. “I’ve appointed more openly gay people to more positions in this government than any president in history. We have moved forward on a whole range of issues that were directly under my control, including, for example, hospital visitation.

“On ‘Don’t Ask, Don’t Tell,’” he said, “I have been as systematic and methodical in trying to move that agenda forward as I could be given my legal constraints, given that Congress had explicitly passed a law designed to tie my hands on the issue. And so, I’ll be honest with you, I don’t think that the disillusionment is justified.”

“Now, I say that as somebody who appreciates that the LGBT community very legitimately feels these issues in very personal terms,” continued the president. “So it’s not my place to counsel patience….I don’t begrudge the LGBT community pushing, but the flip side of it is that this notion somehow that this administration has been a source of disappointment to the LGBT community, as opposed to a stalwart ally of the LGBT community, I think is wrong.”

Later on, Sudbay got in another question—this time on same-sex marriage and the Defense of Marriage Act (DOMA).

“Since you’ve become President, a lot has changed. More states have passed marriage equality laws. This summer a federal judge declared DOMA unconstitutional in two different cases. A judge in San Francisco declared Prop 8 was unconstitutional. And I know during the campaign you often said you thought marriage was the union between a man and a woman, and there—like I said, when you look at public opinion polling, it’s heading in the right direction. We’ve actually got Republicans like Ted Olson and even Ken Mehlman on our side now. So I just really want to know what is your position on same-sex marriage?”

Obama said he is a “strong supporter of civil unions” but that he has been “unwilling to sign onto same-sex marriage primarily because of my understandings of the traditional definitions of marriage.

“But I also think you’re right that attitudes evolve, including mine,” said the president. “And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents. And I care about them deeply. And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today.”

Sudbay quickly asked a final question—whether there is a strategy for passing DADT repeal in the lame duck session.

“Yes,” said President Obama.

“And you’re going to be involved?” asked Sudbay.

“Yes,” said the president.

“Will Secretary Gates be involved?” asked Sudbay.

“I’m not going to tip my hand now. But there is a strategy.”

“I was very deliberate in working with the Pentagon, so that I’ve got the Secretary of Defense and the Chairman of the Joint Chiefs being very clear about the need to end this policy. That is part of a strategy that I have been pursuing since I came into office. And my hope is that will culminate in getting this thing overturned before the end of the year.”

Then Obama seemed to take a swipe at the lawsuit being pressed by the Log Cabin Republicans—a lawsuit that has, thus far, been successful in having DADT declared unconstitutional in a federal district court. It is now before the 9th Circuit U.S. Court of Appeals, where the Obama administration is defending it.

He suggested the LGBT community needs to be “making sure that all those Log Cabin Republicans who helped to finance this lawsuit and who feel about this issue so passionately are working the handful of Republicans that we need [in the Senate] to get this thing done. . . . I mean, it’s just—I don’t understand the logic of it. You’re financing a very successful, very effective legal strategy, and yet the only really thing you need to do is make sure that we get two to five Republican votes in the Senate.”

Obama said he told “the Log Cabin Republican who was here yesterday,” R. Clarke Cooper, executive director of the national gay Republican group, “that can’t be that hard. Get me those votes.”

“Because what I do anticipate is that John McCain and maybe some others will filibuster this issue, and we’re going to have to have a cloture vote,” said Obama. “If we can get through that cloture vote, this is done.”

An aide arrived soon thereafter and beckoned the president to his next “event.”

The interview was the first time any one from the LGBT media has been given an opportunity to ask questions of the president since he took office in January 2009. Repeated requests from this reporter have been routinely turned down, including one made less than a month ago.

Sudbay said he has no idea why he was selected to participate with the group of bloggers in the interview.

“It’s not like AMERICAblog hasn’t been pretty tough on the Obama administration,” said Sudbay.  He said there were no restrictions placed on his questions during the interview.

Other bloggers who participated included Barbara Morrill from DailyKos, John Amato from Crooks & Liars, Oliver Willis from OliverWillis.com, and Duncan Black from eschatonblog.

The White House has made a complete transcript of the interview available, although it was not up on the whitehouse.gov website as of Wednesday night. It can be viewed on americablog.com.

The president acknowledged, at the start of the sit-down, that the progressive bloggers reach “a huge part of my base,” and the timing of the interview suggests it is part of the president’s ramped up effort to rally the Democratic Party’s base to go to the polls November 2 and preserve the current majorities in the House and Senate.

The administration this week touted the president’s record number of openly gay appointees, sent out a guideline to schools about the need to comply with federal laws that obligate them to prevent bullying, and held the DADT strategy meeting with activists.

Congressional Caucus to HHS: Do more to address LGBT youth suicides

Leaders of the U.S. House’s LGBT Equality Caucus called on the U.S. Department of Health and Human Services (HHS) Tuesday to do more to stop suicides among LGBT youth, calling the suicides “a serious public health problem which cannot wait.”

Jerrold Nadler
Jerrold Nadler

Leaders of the U.S. House’s LGBT Equality Caucus called on the U.S. Department of Health and Human Services (HHS) Tuesday to do more to stop suicides among LGBT youth, calling the suicides “a serious public health problem which cannot wait.”

U.S. Reps. Jerrold Nadler (D-NY), Barney Frank (D-MA), Tammy Baldwin (D-WI), and Jared Polis (D-CO) sent a letter to Pamela S. Hyde, Administrator of HHS’ Substance Abuse and Mental Health Services Administration (SAMHSA). The letter asks the agency take “immediate action . . . to better protect LGBT youth and prevent further tragedies.”

Hyde is one of President Obama’s record number of LGBT appointees.

The letter questions SAMHSA’s current policies to fight LGBT youth suicide. Those policies are embodied in the agency’s recent draft plan, Leading Change: A Plan for SAMHSA’s Roles and Actions 2011-2014 (“Leading Change”).

The representatives ask whether SAMHSA is putting enough emphasis on “specific suicide prevention efforts” aimed at LGBT youth. Suicides among this group, they say, 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 letter notes that the Leading Change draft plan does mention an intent to help “[i]mprove mental, emotional, and behavioral health and well-being” of LGBT youth, among others, but they are concerned that this is secondary to other objectives of the plan.

The representatives ask Hyde to detail current and future plans to reduce the risk of suicide among LGBT youth. They also ask whether SAMHSA anticipates needing “additional resources or legal authority” to accomplish any planned efforts relating to combating suicide among LGBT youth.”

“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, “We are prepared to follow through and provide legal authority and additional resources through legislation if necessary.” He said there is no legislation planned at the moment.

Dr. Richard McKeon, Suicide Prevention Branch Chief at SAMHSA, said in an interview that SAMHSA’s National Suicide Prevention Lifeline works closely with the Trevor Project, which runs a suicide prevention lifeline for LGBT youth. The federal National Lifeline will even transfer calls from LGBT youth directly to Trevor. But the Trevor Project receives no money from SAMHSA, said Charles Robbins, Trevor’s executive director. Robbins sits on the Consumer Subcommittee for the National Lifeline.

SAMHSA supports general suicide-prevention programs for youth in a number of ways, including through several grant programs. One grant funds the Suicide Prevention Resource Center (SPRC), a Congressionally mandated center that provides support, training, and resources to help organizations and individuals develop suicide prevention programs and policies.

SPRC released a 63-page white paper in 2008 called Suicide Risk and Prevention for Lesbian, Gay, Bisexual, and Transgender Youth. Anara Guard, senior advisor at SPRC, said in an interview that after releasing the paper, “we were asked to go out and speak more often than we could accommodate.”

SPRC is now creating a Workshop Kit that draws from the white paper. It is designed for people in organizations serving youth, such as schools, after-school programs, and social-service agencies. Guard says the workshop is intended to be co-led by one leader familiar with suicide prevention and one from the LGBT community. She expects the kits to be available this winter.

Additionally, SAMHSA has supported the creation of the National Action Alliance for Suicide Prevention that officially launched on September 10. The Alliance is a public-private partnership designed to advance and update the National Strategy for Suicide Prevention, a document published in January 2001 under Surgeon General David Satcher, just as the Clinton administration ceded the reins to President George W. Bush. At the time, a public-private partnership was envisioned to help guide the implementation of the Strategy.

SAMHSA official McKeon acknowledged that it has taken some time for the Alliance to take off, 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. SAMHSA is providing administrative and infrastructure support to the Alliance through the Congressionally mandated SPRC.

In her speech at the Alliance kickoff September 10, Sebelius noted that LGBT youth were a high-risk group. Coincidentally, the previous day, 15-year-old Billy Lucas of Greensburg, Indiana, had become the first in a number of suicides to be reported that month related to anti-LGBT bullying.

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).

No initiatives, but marriage still an issue

There are no anti-gay initiatives or referenda on any statewide ballots November 2, but that doesn’t mean that same-sex marriages is no longer a political hot potato. Quite the contrary.

Barbara Boxer
Barbara Boxer

There are no anti-gay initiatives or referenda on any statewide ballots November 2, but that doesn’t mean that same-sex marriages is no longer a political hot potato. Quite the contrary. In several states this fall, key races are being contested in part by what position each candidate has on same-sex marriage.

And one of the nation’s most vocal anti-marriage equality organizations is funding advertising campaigns—and mobilizing socially conservative voters—in key battleground arenas, dropping millions of dollars in statewide races, to defeat same-sex marriage supporters on election day.

In California, New Hampshire, Iowa, and Minnesota, the National Organization for Marriage (NOM) is spending more than $1 million on its own and even more in partnership with other anti-gay groups.

Pro-equality gubernatorial candidates are under attack in New Hampshire and Minnesota, while three state supreme court justices have caught the ire of NOM and its allies in Iowa, and U.S. Senator Barbara Boxer is being targeted for her support of same-sex marriage rights in California.

“For the first time, NOM is, in a serious way, engaging in substantial political campaign activity—and without disclosing its donors,” said Kevin Nix, director of the Human Rights Campaign’s NOM project, a new initiative of the nation’s largest LGBT civil rights group. NOM, noted Nix, is “challenging campaign finance laws in multiple states—suing to keep their donors secret.

“Its budget went from $500,000 in 2007 to $10 million this year—a significant increase,” said Nix. “The story here is how aggressive NOM is this year and beyond.  It is the number one anti-gay group in the country right now.”

So, even though the economy, jobs, taxes, and health care reform loom as over-riding concern for Americans going into the mid-term elections, social and religious conservatives are still trying to gain traction with the same-sex marriage as wedge issue.

In Iowa, NOM has already allocated $435,000 for television ads, according to state campaign disclosure reports, urging voters to oust three state Supreme Court justices, who ruled in favor of marriage equality, a 2009 decision that was unanimous.

NOM leader Brian Brown said his organization is “throwing every penny we have” into Iowa. In an October 21 fundraising appeal, he also pledged to build “the largest single get-out-the-vote effort by a social-conservative organization in history.” And nationwide, he added, “We will call 7.4 million households identified as conservative and make sure they get to the polls.”

The focus for NOM in Iowa is a routine vote—taken on a rotational basis—on whether members of the state Supreme Court can serve another eight-year term. But the outcome in Iowa’s “justice retention” vote this year has become a tossup, according to a Des Moines Register. The Register polled 550 likely voters from September 19 through 22 and found that only 45 percent of voters were prepared to vote “Yes” to all three justices, while 40 percent were planning to vote to remove all three, and 16 percent say they want to retain only some.  In addition, more than one-fourth likely voters are either undecided or say they will not vote on retention.

But the closeness of the retention battle is already a cause for alarm among legal observers and LGBT civil rights groups.

“Those poll numbers are stunning,” said Brian T. Fitzpatrick, a Vanderbilt University associate law professor, who has who has followed the battle. “It is virtually unheard-of for a judge to lose a retention race,” he also told the Register.

Justices on the ballot include Chief Justice Marsha Ternus and Justices David Baker and Michael Streit. While all three have vowed not to campaign formally, Ternus has said in speeches that judges under political pressure are less likely to be fair and impartial, according to the Register.

And NOM has help in Iowa. The Washington, D.C.-based Family Research Council and the Tupelo, Mississippi-based American Family Association, among other right-wing groups, are set to hold twenty events across the state to rally voters against retaining the justices. The Iowa Independent reports the AFA has promised $200,000 to retention battle, which falls under the group Iowa for Freedom campaign.

In New Hampshire, NOM is spending $425,000, according to local media reports to “hold [incumbent] Gov. John Lynch  [a Democrat] accountable for his abysmal record as governor,” namely his signing a same-sex civil marriage bill into law. The most recent public opinion polling shows Lynch leading his Republican opponent by ten points.

In California, a NOM press release announced a $1 million bus tour to promote the election of the Republican candidate for the U.S. Senate, Carly Fiorina. Fiorina is in a tight race with the incumbent Democrat, Barbara Boxer. NOM also spent $220,000 in California for television ads and expenditures, according the Federal Election Commission. And NOM has invested about $172,000 on television ads critical of Boxer to be broadcast on Spanish-language television stations, according to Southern California Public Radio.  Boxer supports marriage equality while her opponent “believes in the sanctity of a marriage between a man and a woman,” but supports equal benefits for gays through civil unions.

NOM is also very active in Minnesota. Last May, the organization said it would spend $200,000 in Minnesota media buys and coordinate them with the Minnesota Family Council. Since then, NOM has run four sets of television ads to let “the voters of Minnesota to know the facts about their rights and where the candidates stand on marriage.”  But so far NOM has refused to say how much it has spent.

“NOM sees Minnesota as the next key battleground state in the fight to preserve marriage in America,” said Brown in a press statement this spring, adding, “Many Minnesotans are unaware that special interest groups are working to convince activist judges and DFL lawmakers to redefine marriage in the state.”

Earlier this year, same-sex marriage became a hot button issue in Minnesota when lawmakers held the first-ever hearings on a marriage equality bill. And the real possibility of same-sex marriage being adopted through the legislative process with the election of a pro-equality governor irritated social conservatives.

Democrat-Farmer-Labor Party candidate Mark Dayton and the Independent Party’s Tom Horner have said they would sign a same-sex marriage into law if the legislature approved such a bill. But Republican Tom Emmer says he would veto it.  Polling shows Dayton leading but the race is close.

Religious conservatives jumped into the fray, too.  Catholic Archbishop John C. Neinstedt distributed a DVD to more than 400,000 of Minnesota Catholics in defense of traditional marriage.

Without mentioning any gubernatorial candidates by name, Neinstedt urged Catholics to political action to block same-sex marriage.  Many Minnesota Catholics, particularly Democrats, resent being told how to vote for governor and are unhappy that NOM and the Knights of Columbus, a Catholic fraternal organization, support what they perceive to be a blatantly political play by their church.

“We are just astounded,” said lifelong Catholic Darlene White of Edina, a suburb of Minneapolis, “at how low members of the hierarchy can step to retain power.”

Fed to schools: Law requires actions against bullying

The U.S. Department of Education is issuing guidance to school officials today (October 26), reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students.

Russlynn Ali
Russlynn Ali

The U.S. Department of Education is issuing guidance to school officials today (October 26), reminding them that federal law requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students.

This is the first time the department has detailed the responsibilities educators have to protect LGBT students against such harassment, which is forbidden by Title IX and enforced by the department’s Office for Civil Rights (OCR). Title IX prohibits discrimination “based on sex” in federally funded programs.

“We think this could not be any more timely or important,” said Russlynn Ali, Assistant Secretary for OCR, at a press briefing Monday. “If students don’t feel safe in school, they simply cannot learn.”

The announcement comes after widespread media coverage in September and October of a string of bullying-related suicides by LGBT students or those perceived to be. But it also fulfills a promise to issue such guidance –a promise made by U.S. Secretary of Education Arne Duncan in early August at the department’s first-ever Bullying Prevention Summit.

The 10 pages of guidance make clear that, although current laws enforced by OCR do not explicitly address harassment based on sexual orientation, they do prohibit sexual harassment and gender-based harassment directed at LGBT students or those perceived to be.

The approach is similar to that taken by the administration elsewhere. The U.S. Department of Housing and Urban Development in July issued guidance explaining how gender and disability discrimination protections may cover gender-identity discrimination or discrimination based on real or perceived HIV/AIDS status—even though the Fair Housing Act (FHA) does not explicitly cover sexual orientation- or gender identity-based housing discrimination.

The U.S. Justice Department also intervened in January in the case of a New York teen who was bullied and physically hurt for being effeminate. Justice Department lawyers argued that the federal law against gender-based discrimination also applied to gender expression. In an out-of-court settlement, the school district agreed to pay the boy $50,000, legal fees, and the cost of therapy.

Tuesday’s guidance is being issued in the form of a “Dear Colleague” letter from Ali to administrators at all public and private schools, colleges, and universities, including the country’s 15,000 school superintendents. It reminds them of their obligations to protect students from discrimination based on sex (Title IX), race, color, or national origin (Title VI), and disability (Section 504 and Title II), all statutes enforced by OCR.

The Department also plans to hold workshops around the country in early 2011 to train educators about their obligations and the resources available to help them.

Kevin Jennings, Assistant Deputy Secretary for the Office of Safe and Drug-Free Schools (OSDFS) at the Department of Education, said at the press briefing that they would also be conducting a grassroots campaign to inform educators and others through community-based groups and the Web site Bullyinginfo.org.

If schools violate the anti-discrimination laws enforced by OCR, said Ali, the Department could withdraw all federal funds or place conditions upon them. She noted, however, that the Department has not done so with any school district in the last decade, for any type of civil rights violation, “because they usually come into compliance during negotiation.”

She also noted that the Department has not received any complaints in recent years on LGBT harassment. But Jennings suggested the lack of complaints may have been “because people have not seen federal authorities as a receptive audience” and because of the lack of a federal civil rights law that includes sexual orientation.

The guidance is the latest in a series of Department of Education moves to address school bullying—moves initiated even before the recent suicides. In addition to the August 2010 Summit, the Department in 2009 formed a federal task force on bullying, with representatives from the Departments of Justice, Health and Human Services (HHS), Agriculture, Defense, and Interior.

The Department also announced October 4 the awarding of $36 million in grants to 11 states from a new Safe and Supportive Schools program. The states must survey students, family, and staff about school safety issues, including bullying, and direct grant money at the problems where students say there is the biggest need.

It has also worked with HHS on a Stop Bullying Now campaign that is being expanded from middle school students to elementary school students.

And early next year, the White House plans to host a conference to raise awareness about bullying and harassment and share resources for students, parents, educators, and others.

Two bills in Congress, however, seek to provide greater protection for LGBT students, beyond bullying that is based on sexual harassment or gender stereotyping. The Student Nondiscrimination Act (SNDA) would prohibit discrimination—including harassment—on the basis of real or perceived sexual orientation or gender identity in any program receiving federal funds. The Safe Schools Improvement Act (SSIA) would require schools receiving federal funds to implement and report on LGBT-inclusive anti-bullying programs. Versions of both bills are still pending in House and Senate committees.

Federal departments and their employees are prohibited by law from lobbying Congress about specific legislation, but Ali said Monday that the Department supports the goals of both bills. She said that, as the Department works to reauthorize the Elementary and Secondary Education Act, the major act guiding educational policy, “we will certainly use all of the policy tools within our disposal to try and prevent this kind of harassment from occurring.”

She noted that the guidance issued Tuesday is “about using the tools within our disposal now.”

Jennings said the new guidance was the first step to letting people know that, “in this administration, we plan to apply the letter of the law to the fullest extent of the law in order to extend the greatest level of protections humanly possible to LGBT students.”

Florida attorney general does not appeal gay adoption ruling

Florida Attorney General Bill McCollum announced Friday that he will not challenge a September 22 state appellate court ruling that overturned Florida’s ban on adoption by gay men or lesbians. This means the 33-year-old ban has ended.

Bill McCollum
Bill McCollum

Florida Attorney General Bill McCollum announced Friday (October 22) that he will not challenge a September 22 state appellate court ruling that overturned Florida’s ban on adoption by gay men or lesbians. This means the 33-year-old ban has ended.

Frank Martin Gill, who filed the lawsuit in an effort to secure the adoption of the two boys he and his partner have raised for almost six years, said in a statement from the ACLU of Florida, which argued the case, “We are relieved that this process has finally come to an end, and that we can focus on being a family.”

The Florida Department of Children and Families (DCF) had said October 12 that neither the agency nor Governor Charlie Crist (I) would appeal the appellate ruling. McCollum, however, retained the attorney general’s independent right to appeal up to October 22.

The brief statement issued by McCollum’s office Friday said that the constitutionality of the adoption ban “is a divisive matter of great public interest” but that, after reviewing the merits of an independent appeal to the state Supreme Court and considering the decision of its client, DCF, not to appeal, “it is clear that this is not the right case to take to the Supreme Court for its determination.”

McCollum said that, although he would not appeal, he still felt “the final determination should rest with the Florida Supreme Court, not a lower appellate court.”

McCollum has been criticized by LGBT rights groups and others for paying clinical psychologist Dr. George A. Rekers more than $120,000 to testify in the trial court that children do best with a mother and a father. The appeals court upheld the lower court’s finding that Rekers’ opinions “were not valid from a scientific point of view.” (Rekers was later found traveling with a gay male escort who claimed Rekers himself was gay, although Rekers has denied it.) The Miami Herald reported in June that it had obtained records showing that McCollum hired Rekers despite repeated objections from DCF.

McCollum told the Florida Baptist Witness in August, “I don’t believe in gay adoption”—but Orlando Sentinel columnist Mike Thomas reported that, in May, when he had asked McCollum if he favored taking the boys from Gill, McCollum mentioned a gay campaign aide who had adopted children and said, “Let’s leave it at that.”

The October 22 statement from McCollum’s office said, however, “No doubt someday a more suitable case will give the Supreme Court the opportunity to uphold the constitutionality of this law.”

One pending case that has made headlines is that of Vanessa Alenier, a lesbian who, in January, was allowed to adopt the infant cousin for whom she was a permanent guardian. The Third District court heard arguments in that case just last month.

A spokesperson for DCF, Joe Follick, said the agency has not yet determined whether to drop its appeal in the Alenier case. He added that it would consider that the case would be heard by the same appeals court that ruled the ban unconstitutional in the Gill case.

A spokesperson for the ACLU of Florida, Brandon Hensler, said his group thinks it unlikely that another case would be used to challenge the overturning of the ban.

“The breadth of social science and child welfare research–spanning 25 years–proves irrefutably that gays and lesbians make every bit as much of a good parent as straight parents,” said Hensler. He said judges, not legislators, should decide on a person’s fitness to adopt, and “We are confident that, if the facts and the science ever did make it to the Supreme Court, we would win there, too.”

DCF’s Follick noted that, after the September 22 appellate court ruling, DCF stopped asking prospective adoptive parents about their sexual orientation, and removed the question from its forms.

The state legislature had passed the ban in 1977, under pressure from television personality Anita Bryant and her anti-gay “Save Our Children” organization.

The two boys at the center of the case will now be legally tied to one—but not both—of the dads who have raised them. Gill and his partner, who has not been identified in court documents, felt they would stand no chance if they sued for a joint adoption. Whether they will now seek a second-parent adoption making the partner a legal parent as well—or if the state would grant one—remains an open question.

Gill noted in his statement, however, “Our boys have overcome difficult beginnings to become happy, healthy kids. All children deserve a chance at finding a stable, loving and permanent home.”

Marriage referendum reaches high court

A lawsuit over a referendum on same-sex marriage has reached the U.S. Supreme Court. And it’s not Proposition 8.

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

A lawsuit over a referendum on same-sex marriage has reached the U.S. Supreme Court. And it’s not Proposition 8.

The lawsuit is Jackson v. D.C., an appeal that asks whether the District of Columbia charter (the city’s equivalent to a constitution) can bar voters from considering a ballot measure that would amend the charter in a way that would violate the city’s human rights law.

D.C.’s charter prohibits discrimination based on sexual orientation, and, earlier this year, the city enacted a marriage equality law that enables same-sex couples to obtain marriage licenses the same as straight couples.

A group of eight local anti-gay activists, led by Harry Jackson, have sought to put a referendum on the D.C. ballot to repeal that marriage equality law. The D.C. courts and the city’s Board of Election ruled such a referendum would violate the city initiative laws, which prohibit referenda on matters pertaining to the city’s human rights act.

In March, the anti-gay coalition took a preliminary matter before the U.S. Supreme Court, seeking an emergency stay of the marriage equality law until the referendum issue could be settled in the courts.

Chief Justice John Roberts, who handles emergency petitions from the D.C. Circuit, denied the emergency stay. But in doing so, he added that he thinks the argument Jackson’s group makes about the referendum “has some force,” it just didn’t have a strong basis for an emergency order. Instead, he said, the petitioners would “have the right to challenge any adverse decision through [an appeal to] this Court at the appropriate time”—or after the D.C. Court of Appeals ruled.

Longtime lesbian legal scholar Nan Hunter said Roberts’ remarks amounted to a “hint” that encouraged the Jackson group to come back.

D.C.’s highest court, the D.C. Court of Appeals, ruled in July that the human rights act restriction was consistent with the charter.

And in its new petition, filed October 12 by the right-wing Alliance Defense Fund, the Jackson group argues the D.C. Court of Appeals decision has “left the District’s citizens without immediate recourse on the issue of marriage” and “approved a Council-imposed limitation on the people’s Charter-based initiative power.” The D.C. Council, it argued, approved the human rights act restriction in the city’s initiative laws even though the city counsel’s office advised it that the restriction violated the charter.

D.C.’s charter provides a four-step process by which it can be amended—through a vote of City Council, the signature of the mayor, ratification by voters, and then approval of Congress.

Four justices must agree to hear the appeal before the Supreme Court will schedule it for review. The fact that Roberts has already indicated he thinks the Alliance argument “has some force” suggests he may well vote to take the case and easily pick up three other votes to do so.

“ If any other issue were involved, I think that the Court would be very likely to deny cert, finding that the legal questions presented did not merit highest court review, in part because of their very limited ramifications,” said Hunter. “On gay marriage, though, with four extremely conservative Justices including one who signaled that he was sympathetic, I think all bets are off.” If the court does take the case, however, the court’s opinion would be one not specifically on the point of same-sex marriage. Instead, it would deal with the validity of the D.C. initiative laws prohibiting referenda that implicate the city’s human rights act.

But if this case is lost at the Supreme Court, noted Hunter, Jackson and his group would almost certainly then mount a referendum to repeal D.C.’s marriage equality law.

“The result,” she said, “would amount to an East Coast rerun of Prop 8, with issues of religion and race foregrounded.”

9th Circuit puts DADT injunction on hold

The 9th Circuit U.S. Court of Appeals Wednesday night stopped the enforcement of a federal district court judge’s order that the military stop enforcing “Don’t Ask, Don’t Tell.”

Barney Frank
Barney Frank

The 9th Circuit U.S. Court of Appeals Wednesday night stopped the enforcement of a federal district court judge’s order that the military stop enforcing “Don’t Ask, Don’t Tell.” And, pressure has begun building within the Democratic ranks for President Obama to do more to stop enforcement of the law, with Rep. Barney Frank on Wednesday releasing a statement saying, “President Obama made a mistake in appealing” the lower court decision in the case.

The stay brings to an end eight days in which the military did not enforce the 16-year-old ban on gays in the military—a period during which at least some openly gay former servicemembers—including former Army Lieutenant Dan Choi on Tuesday—were allowed to re-enlist. It is not clear what impact the stay—which is temporary—might have on their re-enlistment.

The 9th Circuit’s order on Wednesday was in response to two emergency motions filed by the U.S. Department of Justice. One sought the temporary stay of the injunction against DADT until DOJ and attorneys for Log Cabin Republicans can submit briefs regarding a more lasting injunction. The 9th Circuit granted the temporary stay and it will remain in place until the 9th Circuit rules on the second motion. Briefs on the second motion are due October 25.

The second DOJ motion seeks a more lasting stay on the injunction—one that would remain in place until the 9th Circuit can rule on the merits of the underlying lawsuit, Log Cabin Republicans v. U.S.

In Log Cabin v. U.S., U.S. District Court Judge Virginia Phillips ruled on September 9 that DADT the First Amendment right to free speech and the Fifth Amendment right to due process in the federal constitution.

Rep. Frank, a Democratic Party loyalist and not one prone to quick criticism of a Democratic president, said Wednesday that, while President Obama does have an “obligation to defend even laws they dislike,” DADT has been repudiated not only by Obama but also by a “decisive majority of the House” and a majority of the Senate.

“The President must use every available tool he has to press the Senate” to pass the DADT repeal legislation, said Frank.

Judge Phillips formally entered her opinion in Log Cabin v. U.S. on October 12 and issued an injunction, ordering the federal government to stop enforcement of DADT.

DOJ filed a motion with Judge Phillips on October 14, asking her to issue a stay of her injunction while it appeals the decision to the 9th Circuit. But, on October 19, Phillips denied that request.

In her six-page order Tuesday, Phillips noted that, before she issued the injunction, DOJ “provided no evidence regarding the alleged disruption” to military readiness or regarding the “need to revise dozens of policies and regulations” that DOJ claimed would be associated with compliance with the injunction.

And at a hearing on the injunction October 18, she said, DOJ’s evidence was “unpersuasive” and “belied by the uncontroverted evidence presented at trial regarding the Don’t Ask, Don’t Tell Act’s effect on military readiness and unit cohesion.”

The Log Cabin Republicans filed its lawsuit, which was heard by Phillips in July, during two weeks of testimony at the U.S. District Court for Central California, in Riverside. Phillips noted that, at trial, DOJ “chose not to rebut” evidence submitted by LCR.

“So, to the extent [DOJ attorneys] now argue that stopping discharge under the [DADT] Act will harm military readiness and unit cohesion, they had the chance to introduce evidence to that effect at trial,” wrote Phillips. DOJ “did not do so” and the evidence it “belatedly present now does not meet their burden to obtain a stay.”

Phillips agreed with DOJ that the “public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights” and that preserving the status quo and enforcing laws are “important” interests. But, she said, “these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.”

Log Cabin praised Phillips’ order.

“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” said R. Clarke Cooper, executive director of Log Cabin Republicans. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.”

Servicemembers Legal Defense Network issued a statement of caution.

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away,” said SLDN Executive Director Aubrey Sarvis. “The Department of Justice will immediately ask the 9th Circuit to stay the injunction…. During this interim period of uncertainty, service members must not come out. Our service members need finality. Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

The House has already passed a measure that includes repeal of DADT, but the Senate last month failed to break a Republican-led filibuster largely aimed at stopping the repeal. Senate Majority Leader Harry Reid has indicated he plans to bring the defense spending bill, which includes the repeal measure, to the floor when the Senate reconvenes following mid-term elections next month.

Lt. Dan Choi, who has been active in staging protests to the Obama administration over DADT and who was discharged under the law in June, went to a recruitment center in Times Square Tuesday to re-enlist. He said the process took more than two hours but that recruiters conducted themselves “very professionally” and allowed him to re-enlist.

Meanwhile, even a national gay Democratic group is beginning to show impatience with the Obama administration’s actions concerning DADT.

“If the Obama administration is going to appeal this decision to higher courts,” said National Stonewall Democrats Executive Director Michael Mitchell, “then we need to hear the President say that he believes DADT is unconstitutional. We need to hear it in a context of a plan [for eradicating DADT] that includes several back-ups, especially if Senator [John] McCain is serious about his churlish and misguided threat of another filibuster in the lame duck session.”

McCain, speaking to an NBC affiliate station in Arizona Sunday, October 17, said “Absolutely I will filibuster or stop it from being brought up until we have a thorough and complete study on the effect of morale and battle effectiveness.”

McCain led filibuster efforts last month that derailed a defense spending bill that included DADT repeal language. That spending bill, an annual defense authorization bill, is critical to funding operations of the Department of Defense. Democrats have said they have the 55 votes needed to stop any effort to strip the DADT repeal language from the bill, but they did not have the 60 votes they needed to break the filibuster. The mid-term elections are expected to weaken their ability to break a filibuster even further.

Rep. Frank, in the statement he issued Wednesday, said that, if Republicans again mount a filibuster, “the President should reconsider the decision to appeal” Log Cabin v. U.S. “and should also state clearly that any member of the military who acts in accord with the injunction…will remain protected against any disciplinary action in the future.”

“While the president does not have the authority unilaterally to repeal a statute,” said Frank, “he clearly has the discretion to order that no subsequent retroactive application of the policy be imposed.”

Dems clinging to Senate, and stark contrast to GOP

The likelihood of Democrats retaining a majority of the U.S. Senate has diminished dramatically in recent days. But the news is worse than that for the LGBT community, which has had to depend on the Democratic Party to do any of its bidding in Congress.

Christine O'Donnell (Photo credit: Michael Johns)
Christine O'Donnell (Photo credit: Michael Johns)

The likelihood of Democrats retaining a majority of the U.S. Senate has diminished dramatically in recent days. But the news is worse than that for the LGBT community, which has had to depend on the Democratic Party to do any of its bidding in Congress.

The Tea Party Republican Senate candidate in Colorado who called homosexuality a choice has a 66 percent chance of beating the Democratic incumbent who has a pro-gay record. The Tea Party Republican Senate candidate in Nevada, who would ban adoptions by gays, has a 62 percent chance of unseating Senate Majority Leader Harry Reid, who has a 100 score from the Human Rights Campaign. The Wisconsin Republican candidate, who says he will “stand up to attacks” on such “traditional values” as marriage meaning “one man and one woman,” now has a 94 percent chance of ousting longtime gay civil rights supporter Russ Feingold.

The percentages come from the New York Times’ election data cruncher known as fivethirtyeight. It analyzes polling, demographic, and other relevant data, computes 100,000 simulations based on “random variation in the local and national political environment,” and spits two numbers: one is a projected election result (what percent of the vote each candidate will take), the other is a percentage representing the likelihood that one candidate will beat the other.

The bad news is: It’s likely Republicans will beat Democrats in 26 of the 37 Senate races November 2. That will mean –if the outcome sticks to the prediction—that three Democratic incumbents whose voting records have been strongly pro-gay: Reid in Nevada, Feingold in Wisconsin, and Michael Bennet in Colorado.

It means Democrats might hold as few as 51 or 52 seats in the Senate, giving them an even weaker majority than the 57 they have in the current Congressional session which has been marked by filibusters and other obstructionist acts by the minority.

But there is good news: 8 of the 12 incumbent Democrats who have HRC scores of 80 or better are poised to win re-election fairly easily, according to the NYT-fivethirtyeight predictions. That includes Barbara Boxer of California, Patty Murray of Washington, Patrick Leahy of Vermont, Ron Wyden of Oregon, Daniel Inouye of Hawaii, Barbara Mikulski of Maryland, and Charles Schumer and Kirsten Gillibrand of New York.

In Delaware, where a Republican Tea Party candidate, Christine O’Donnell has described homosexuality as “an identity disorder,” Democrat Chris Coons is seen as 100 percent likely to win. That’s not because of O’Donnell’s remarks about homosexuality so much as her revelation years ago that she has “dabbled into witchcraft.” Interestingly, very little has been discussed about her revelation at that same time—on the Bill Maher Show in 1999—that she had “dates” with a “witch” but “never joined a coven.”

“I hung around people who were doing these things,” said O’Donnell. She never explained, and no media has apparently asked, for details, probably because there have been so many of her foibles to keep up with.

According to Tina Brown’s The Daily Beast website, O’Donnell has a lesbian sister, in Los Angeles, but O’Donnell’s own evangelical organization—Savior’s Alliance for Lifting Truth (SALT)—organized to oppose homosexuality, among other things. When the organization’s ex-gay outreach director, Wade Richards, came out publicly as gay in an article in The Advocate magazine, he said O’Donnell “totally turned her back on me.”

Salon.com said O’Donnell used a video with a “sizzling sub-narrative” that her Republican primary opponent, Mike Castle, was “cheating on his wife with a man.” It’s not clear where and when the video, produced by a consulting firm that O’Donnell hired, was aired. But, after disavowing the tactic of gay-baiting, O’Donnell continued to make her own gay-baiting statements, including an admonition for Castle to “put your man pants on.”

The list of anti-gay remarks and positions O’Donnell has racked up is numerous, very numerous. So, what about her Democratic opponent?

The Human Rights Campaign has endorsed Chris Coons, a county executive who it says “will continue fighting for LGBT issues.” He’s for marriage equality, for repealing Don’t Ask, Don’t Tell (DADT), for repealing the Defense of Marriage Act (DOMA), and for passing the Employment Non-Discrimination Act (ENDA).

No other Senate race has been quite this saturated with gay hostilities, but many of them show equally stark splits between the Republican and the Democrat on issues of basic interest to the LGBT community, such as DOMA, DADT, and ENDA:

  • CALIFORNIA: Incumbent Democrat Barbara Boxer has earned a 100 percent from HRC. She voted against a motion that would have led to a vote on a federal constitutional amendment to ban same-sex marriage and she voted for an amendment to add sexual orientation and gender identity to the federal hate crimes statute. In 1996, she was one of only 14 senators to vote against DOMA, and she voted for ENDA. She is co-sponsor of a bill to provide equal benefits to the same-sex partners of federal employees. Her Republican opponent, Carly Fiorina, former Chairman of Hewlett-Packard, is opposed to equal rights to marriage for same-sex couples but supports allowing them to have civil unions. She has expressed support for DOMA, noting that it had “bipartisan support” and is supported by President Obama. She has also expressed support for Proposition 8, saying the voters were clear about what they wanted and that it was “perhaps not appropriate” for a single judge to overturn a law approved by voters. However, she said, “I support very much the repeal of Don’t Ask, Don’t Tell.”
  • COLORADO: Incumbent Democrat Michael Bennet has been in office only since January 2009, when he was appointed to serve out the term of now Secretary of Interior Ken Salazar. He has not been in office long enough yet to earn a rating from HRC, but he supports many pro-LGBT bills and is co-sponsor of repealing DADT and ENDA. In the primary campaign, Bennet said through a spokesperson that he supports full repeal of DOMA but also supports the right of states to pass ballot measures banning gay marriage. Bennet supports the repeal of DADT. His Republican opponent Ken Buck made headlines last Sunday when he told NBC’s Meet the Press that he thinks homosexuality is a choice. Bennet called Buck’s remark “outside the mainstream” of opinion on the issue.
  • FLORIDA: This is a three-way race, with polls indicating Tea Party Republican Mark Rubio has a 92.7 percent chance of winning. Both he and Independent candidate Charlie Crist oppose repeal of DADT. Crist has said he would oppose a same-sex marriage ban in the federal constitution but believes marriage is between one man and one woman and that gay couples should have only civil unions. Crist has also expressed support for a state appeals court decision that struck down the state’s ban on gays adopting. Democrat Kendrik Meek includes a large section on his campaign website expressing his support for equal rights for LGBT people, including opposition to a federal constitutional amendment to ban same-sex marriage, support for repealing DADT, and opposition to Florida’s adoption ban. Meek, however, is given less than one percent chance of pulling out a victory.
  • ILLINOIS: This is one of the tightest races in the country, with Republican Mark Kirk showing only a 54 percent chance of taking replacing Democrat Roland Burris in Barack Obama’s old seat. HRC has endorsed Democrat Alex Giannoulias, saying he stands for “full equality” for LGBT people, including marriage equality, repeal of DOMA and DADT. Kirk has earned strong voting scores from HRC—85, 75, and 88—during the past three Congressional sessions, when he served in the House, but last June he voted against repeal of DADT. Following numerous reports by bloggers that Kirk is a closeted gay man, a local television reporter asked him why the bloggers “keep saying that.” Kirk, who has said publicly he is not gay, said he thinks it’s because he’s divorced.
  • NEVADA: Republican Sharron Angle vowed not to take contributions from corporations that provide equal partner benefits to gay employees. In debate last week, she dodged a question about her position on DADT, except to say that she thought it was wrong for the Senate to take up the issue via the defense spending bill before the Pentagon turned in its study. And she volunteered that she supports Nevada’s law to “define marriage as between a man and a woman.” NYT-fivethirtyeight gives Angle a 62 percent chance of winning the seat held by Democrat Harry Reid, a member whom HRC rates as 100 percent supportive on LGBT issues.
  • WASHINGTON: Longtime LGBT supporter Patty Murray is not perfect on gay issues. She voted for DOMA, but she co-sponsored ENDA and supports repeal of DADT. And she has a serious challenger in Republican Dino Rossi. NYT-fivethirtyeight says Murray has an 83.7 percent chance of winning but the likely result looks like 51 percent to 46.5 percent with a five-point margin of error, so it’s considered a toss-up. Rossi, two years ago, indicated he does not support marriage equality for gays and was not entirely supportive of even domestic partnerships.
  • WISCONSIN: Incumbent Democrat Russ Feingold is in a tough fight for his seat, and NYT-fivethirtyeight gives his Tea Party Republican opponent, Ron Johnson, a 94 percent chance of taking the victory November 2. Feingold rates a 90 score from HRC and, like Boxer, was one of only 14 senators in 1996 to vote against DOMA. HRC says he was also one of the first senators to publicly support marriage equality for same-sex couples. Johnson supports repealing DADT but only if the military approves it, and he opposes marriage equality for same-sex couples.

Meanwhile, a number of candidates in both Senate and House races have taken to taunting their opponents—at least the male ones—to “man up” or act “like a man.” It’s not a sophisticated level of discourse and may reflect frustration with their own campaigns or their own ability to defend their political positions.

Kendrick Meek, for instance, the Democratic candidate for Senate in Florida, told reporters that Independent candidate Charlie Crist “needs to man up and leader up his own campaign,” rather than suggest that Meek’s campaign is flailing.

Sharron Angle, the Republican challenging Senate Majority Leader Harry Reid for Nevada’s seat in the Senate, garnered considerable media attention for her “Man up, Harry Reid” quip in their only debate October 14. Democratic incumbent Robin Carnahan of Missouri said her Republican opponent should “man up” and repeal his own health insurance before asking others to.

And Tea Party Republican Rand Paul, seeking a Senate seat representing Kentucky, goaded his Democratic opponent to “run a race like a man.”

The highly publicized gender-based goading comes at an especially ironic time, on the heels of increased attention nationwide to the negative consequences of bullying, especially against LGBT youth.

Florida Gov. and agency won’t appeal court adoption ruling

Neither the Florida Department of Children and Families (DCF) nor Governor Charlie Crist will appeal a September 22 ruling that overturned the state ban on adoption by gay men or lesbians. But will state Attorney General Bill McCollum appeal on his own?

Charlie Crist
Charlie Crist

Neither the Florida Department of Children and Families (DCF) nor Governor Charlie Crist (I) will appeal a September 22 ruling that overturned the state ban on adoption by gay men or lesbians.

But one question remains: Will state Attorney General Bill McCollum, who has said he does not believe gay people should adopt, appeal on his own?

DCF issued a statement October 12 saying the ban is now “unconstitutional statewide,” and the Third District Court of Appeal ruling is “binding on all trial courts.”

A spokesperson for DCF, Joe Follick, confirmed that DCF worked with Governor Crist in deciding not to appeal.

Immediately after the Third District ruling, Crist said he would no longer enforce the ban, but it was unclear whether he would ask that the decision be appealed to the Florida Supreme Court.

The DCF said that it considered such an appeal “to achieve an ultimate certainty and finality for all parties. But the “depth, clarity and unanimity” of the Third District and circuit court decisions have “made it evident that an appeal would have a less than limited chance of a different outcome.”

None of the three Third Circuit judges who ruled unanimously to overturn the ban could be accused of liberal bias. Gerald B. Cope, Jr. was appointed by Republican Governor Bob Martinez in 1988. Vance E. Salter and Frank A. Shepherd were each appointed by Governor Crist. (Crist was a Republican before switching to Independent in order to run for the U.S. Senate.)

Salter was also honored by Pope John Paul II for his charitable service. And Shepherd was appointed to a position in the Environmental Protection Agency by President Reagan in 1981. He has also held senior positions in the conservative/libertarian Pacific Legal Foundation and James Madison Institute.

DCF spokesman Follick told Keen News that the agency weighed the toll that an appeal would have on plaintiff Frank Martin Gill and his family. Gill was trying to adopt the two boys he and his partner have raised for almost six years.

Gill had said in a statement on September 22 that “ending this case now” would be the quickest way for him to adopt the boys and remove barriers for other children to be adopted.

McCollum’s communications director, Ryan Wiggins, said in an e-mail October 12, “We appreciate [DCF’s] announcement, and look forward to a conversation with DCF about what the next actions will be.” By law, McCollum has until October 22 to appeal.

McCollum has been criticized by LGBT rights groups and others for paying clinical psychologist Dr. George A. Rekers more than $120,000 to testify in the trial court that children do best with a mother and a father. The appeals court upheld the lower court’s finding that Rekers’ opinions “were not valid from a scientific point of view.” (Rekers was later found traveling with a gay male escort who claimed Rekers himself was gay, although Rekers has denied it.) The Miami Herald reported in June that it had obtained records showing that McCollum hired Rekers despite repeated objections from DCF.

McCollum told the Florida Baptist Witness in August, “I don’t believe in gay adoption”—but Orlando Sentinel columnist Mike Thomas reported that in May, when he had asked McCollum if he favored taking the boys from Gill, McCollum mentioned a gay campaign aide who had adopted children and said, “Let’s leave it at that.”

Despite the DCF’s decision not to appeal the Gill case, Follick said it has not yet determined whether to drop its appeal in the case of Vanessa Alenier, a lesbian who in January was allowed to adopt the infant cousin for whom she was a permanent guardian. The Third District court heard arguments last month.

Alenier’s lawyer, Alan Mishael, said he does not yet know how the Gill decision will impact his client’s case, which has been argued on different grounds. Gill’s attorneys argued that the adoption ban violated the principle of equal protection—that all are equal before the law. Mishael is arguing that it goes against a state prohibition on “special laws” telling judges how to rule in adoption cases, violates the separation of powers between government branches, and is a bill of attainder—legislative punishment of a defined group without a judicial trial.

Judge Cope, who wrote the opinion in the Gill case, is one of the members of the three-judge panel that will decide the Alenier case.

Mishael also noted that McCollum did not appeal rulings that had granted adoptions to Mishael’s client Wayne LaRue Smith and to Robert Lamarche, both gay men.

DCF, said Follick, did not appeal those cases because the men were already permanent guardians, and the children were not being adopted directly out of state care. McCollum’s office did not respond by press time as to why McCollum did not appeal on his own, however.

Equality Florida, the state’s largest LGBT rights group, said on its Web site that the decision not to appeal the Gill case was a “tremendous victory,” but added, “The same anti-gay forces who pushed for Florida’s marriage amendment in 2008 will likely try to put a return of the adoption ban up for a statewide vote [in] 2012.”

For the moment, however, DCF has revised its application forms to omit the question about sexual orientation and instructed staff not to ask about or consider sexual orientation in evaluating prospective parents. Instead, DCF told them in a memo (obtained by Equality Florida), “Focus your attention on the quality of parenting that prospective adoptive parents would provide, and their commitment to and love for our children.”

DADT injunction: Now and global

A federal judge in California Tuesday issued an order to put an “immediate” and global halt to all discharges and investigations under Don’t Ask, Don’t Tell.

scalesA federal judge in California Tuesday issued an order to put an “immediate” and global halt to all discharges and investigations under Don’t Ask, Don’t Tell.

Federal District Court Judge Virginia Phillips surprised many Tuesday when she issued the injunction, because the U.S. Department of Justice had urged her to limit any enforcement of her decision until after Congress has had a chance to consider repeal of the federal law this fall.

A spokesperson for DOJ said attorneys are “reviewing the ruling” and would have no immediate comment.

But it is the type of injunction DOJ is almost certain to appeal immediately, especially given that there is still some hope that the Senate will take up repeal language on Don’t Ask Don’t Tell (DADT) after Congress returns from the mid-term elections. The House has already approved repeal language, but Republicans in the Senate filibustered a defense spending bill last month in part because of opposition to repealing the law at this time.

The three-page injunction, filed October 12, reiterates Judge Phillips’ ruling in September that DADT is unconstitutional. The order “permanently enjoins” the U.S. and the Department of Defense from “implementing regulations against any person under their jurisdiction or command.”

The injunction also calls for an immediate suspension of “investigation, discharge, separation, or other proceeding” under the law.

Reaction from LGBT civil rights groups was ecstatic.

“The order represents a complete and total victory for Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country,” said Dan Woods, lead counsel for the national gay Republican group in its lawsuit, Log Cabin Republicans v. the United States.

Log Cabin filed the long-shot lawsuit in 2004, and Phillips, in the U.S. District Court for Central California, in Riverside, presided over a trial in July.

Some legal observers had speculated the judge might grant DOJ’s request that, if she issued an injunction against discharges, that she apply it only to Log Cabin members in the military, since Log Cabin had filed the lawsuit on behalf of its members who are or have been in the military.

But Log Cabin Republicans also issued a statement urging gay servicemembers to exercise caution in regards to the injunction.

High Court ponders another exception to 1st Amendment

Fred Phelps’ followers say their hate-filled messages constitute a contribution to public discourse. But, in front of the U.S. Supreme Court, attorney Sean Summers argued that these messages, when conveyed outside the funeral of a fallen soldier, inflict an injury for which the group should be made liable.

Fred Phelps
Fred Phelps

Fred Phelps’ followers say their hate-filled messages that “God Hates Fags,” “Semper Fi fags,” and “Thank God for dead soldiers” constitute a contribution to public discourse—or, as their attorney Margie Phelps put it, “speech on public issues.”

But, in front of the U.S. Supreme Court Wednesday, October 6, attorney Sean Summers argued that these messages, when conveyed outside the funeral of a fallen soldier and repeated on the Phelps’ godhatesfags website, inflict an injury for which the group should be made liable.

The case, Snyder v. Phelps, seeks to undo a ruling in favor of Phelps in the conservative 4th Circuit U.S. Court of Appeals. A three-judge panel for that circuit ruled last year that Phelps’ anti-gay messages—on placards and a website—are protected speech.

The conflict began in March 2006 when the family of Matthew Snyder, a Marine killed in Iraq, held a funeral service him in Maryland. Later that day, Matthew’s father, Albert, saw news reports of the funeral being picketed by Phelps and his followers carrying signs, saying such things as “Fag troops,” “Semper Fi fags,” “God Hates Fags,” and “Thank God for dead soldiers.”

The Westboro group has staged similar protests at the funerals of other servicemembers –so many, in fact, that Congress passed the Respect for America’s Fallen Heroes Act in May 2006 to prohibit protests within 300 feet of any federal military cemetery within 60 minutes of a funeral.

But outside Snyder’s funeral, the Phelps clan reportedly positioned themselves 1,000 feet from the church where the funeral service was taking place. And they broke no law.

The First Amendment right to freedom of expression protects the right of all citizens to express their views, however objectionable those views—or simple remarks—may be. But the high court has also, over the years, identified exceptions. For instance, a citizen cannot go into a crowded theater and shout, “Fire.” One cannot make a false statement about another person that causes injury to that person. And one cannot utter “fighting words,” or words so caustic that would be expected to “incite an immediate breach of the peace.”

The question the court struggled with Wednesday is whether a new exception should be made. Should a citizen be prohibited from making “outrageous” and hostile statements in the name of public discourse outside a private funeral and then on a website that no reasonable person would consider true but which inflict emotional distress on the family of the deceased.

Margie Phelps, representing her father and the Westboro Baptist Church, said the group’s actions outside the funeral of Matthew Snyder were within the law and constituted “people from a church delivering a religious viewpoint, commenting” on “public issues” such as “dying soldiers” and “the morals of the nation….”

Justice Ruth Bader Ginsburg cut her off, asking why the Phelps protesters needed to “exploit a private family’s grief” to participate in this discussion, “when you have so many other forums for getting across your message?”

Phelps said “there are some limits on what public places you can go to deliver words as part of a public debate.” But “If you stay within those bounds,” she said, ”this notion of exploiting . . . has no definition in a principle of law that would guide people as to when they could or could not.”

None of the justices seemed to be buying Phelps’ argument (and all participated vigorously in the case, except for Justice Clarence Thomas, who almost never does).

Justice Antonin Scalia said doesn’t see a difference between an “outrageous statement” and a “fighting word.”

Justice Stephen Breyer said, “if you have an instance where the defendant has said on television or on the Internet something…you show that it was intended to and did inflict serious emotional suffering, you show that any reasonable person would have known that likelihood, and then the defendant says: ‘Yes, I did that, but in a cause, in a cause. And now—in a cause that we are trying to demonstrate how awful the war is.’

“At that point,” said Breyer, “I think the First Amendment might not leave this alone.”

Sean Summers, the attorney for the Snyders, compared what the Phelps group does to someone putting on a web site that a particular person has AIDS.

“Whether it’s true or not,” said Summers, “essentially, at some point in time, it might rise to the level of an intentional infliction of emotional distress.”

Important to the discussion was whether Matthew Snyder should be considered a private person or a public figure. That’s because, in a 1988 U.S. Supreme Court decision in Hustler v. Falwell, the court ruled that a public figure may not recover damages for the intentional infliction of emotional pain without first showing that the speaker made the injurious and but obviously false remarks with “actual malice.” (Hustler had published a parody of evangelical preacher Jerry Falwell that portrayed him as having had an incestuous relationship with his mother.)

Summers said the Hustler rule does not apply when the victim is a private person. But Phelps’ attorney said Matthew Snyder’s father made his son into a public figure when he placed an obituary with a funeral notice in the local newspaper.

Justice Samuel Alito noted that racism is a public issue and asked whether that would give someone the right to target an African American on the street to berate them with anti-black remarks.
“I think the issue of race is a matter of public concern,” said Phelps. But she said that “approaching an individual up close and ‘in their grille’ to berate them gets you out of the zone of protection, and we would never do that.”

Many in the LGBT community would, of course, disagree. The Phelps family has been very confrontational with members of the LGBT community. As early as the 1993 National March on Washington for gay civil rights, a band of Phelps followers stood on the curb, holding up hate-filled signs, cursing, deriding, and spitting upon protesters. Long before they began picketing the funerals of servicemembers, they staged similar demonstrations near the funerals of people who died of AIDS. And they showed up with anti-gay signs outside the funeral of Matthew Shepard, the Wyoming gay student who was brutally murdered for being gay.

Gays were not mentioned once during Wednesday’s oral argument, though Justice Anthony Kennedy noted that Phelps’ argument could be used to justify targeting just about anyone.

“All of us in a pluralistic society have components to our identity,” said Kennedy. “We are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young. Any one of those things you could turn into a ‘public issue’ and follow a particular person around, making that person the target of your comments.”

No gay organization submitted a brief to the court concerning the case.