Marriage equality opponents vow rematch over public disclosure case

In a ruling hailed by gay activists, the U.S. Supreme Court upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation may not yet be finished.

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)

In a ruling hailed by gay activists, the U.S. Supreme Court on June 24 upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State. But litigation over the domestic partnership battle may not yet be finished and may be back before the court in a year or so.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said a state law requiring the names and addresses of petition signers be available to the public does not violate the First Amendment of the U.S. Constitution.

Chief Justice John Roberts wrote the decision—a bit of a surprise given that his questions during oral argument seemed to indicate he would be inclined to rule in favor of the plaintiffs. However, in the opinion, Roberts suggested plaintiffs could do better by limiting their challenge to the state law’s impact in the Referendum 71.

James Bopp, who represented Protect Marriage Washington, said Thursday plaintiffs “absolutely” intend to pursue that route.

The case, Doe v. Reed, questioned the constitutionality of Washington’s Public Record Act (PRA).

Protect Marriage Washington and two “John Doe” plaintiffs brought the lawsuit on behalf of citizens who signed a petition to put Referendum 71 on the ballot in 2009. The defendant was Washington Secretary of State Sam Reed, a coalition that supported the state’s new domestic partnership law, and a group that sought to preserve openness in government.

Referendum 71 sought to repeal the domestic partnership law that had been recently approved by the legislature. And Protect Marriage said the public disclosure of the names of people signing the petition to put it on the ballot had a chilling effect on their freedom of speech. According to Protect Marriage, the law enabled persons who disagreed with petition-signers to target them for harassment and threats.

A federal district court judge in Seattle agreed with the group, but the 9th Circuit U.S. Court of Appeals did not, so plaintiffs appealed to the U.S. Supreme Court.

Chief Justice Roberts said that the state law furthered the state’s interest in preserving the “integrity of the electoral process” and that this is sufficient justification for it. He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

Anne Levinson, chairman of the pro-gay Washington Families Standing Together group, applauded the result, calling it “a significant defeat for those who have sought to enshrine discrimination into law at the ballot box.”

“Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans,” said Levinson. “Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.”

Attorneys for Protect Marriage had argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.” And during oral argument in April, Justice Stephen Breyer seemed to signal some sympathy with this argument. He asked whether people who supported integration would ever have signed a pro-integration petition if “there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.”

Washington State Attorney General Robert McKenna responded by noting that the high court, in the controversial Citizens United v. Federal Election Commission decision in January, had already allowed for case-by-case exceptions to be made concerning the disclosures of campaign contributors. That decision held that contributors would have to show a “reasonable probability” that disclosure of their names “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

McKenna added, and the majority clearly agreed, that Protect Marriage plaintiffs had failed to offer any evidence to support their concern for harassment. And, noted McKenna, three other states with public disclosure laws held gay-related ballot measures and offered “no evidence…that anyone who signed any of these petitions in those three States was subjected to harassment.”

Citizens United has been one of the Supreme Court’s most controversial decisions, ever. The decision said the government could not put a limit on how much money a corporation contributes to a political campaign. The 5 to 4 ruling was harshly criticized by many as opening a door for corporate domination of electoral politics. But the decision also said that contributors could not hide public disclosure of their contributions without demonstrating a “reasonable probability” that disclosure “would subject them to threats, harassment, or reprisals from either government officials or private parties.”

Chief Justice Roberts said plaintiffs’ contention that the Washington disclosure law subjected supporters of ballot measures to harassment could not justify striking down the public records law for all referenda; but, he suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

Protect Marriage did make a more narrow claim—that supporters of Referendum 71 were vulnerable to significant threats—but that claim was not before the Supreme Court—only its claim that the state public disclosure law was, in and of itself, unconstitutional.

Even though voters in November 2009 rejected Referendum 71 and the domestic partnership law will mark its first anniversary next month, Bopp said the litigation will continue.

But five justices wrote or joined concurring opinions to signal that they will be hard to convince on a case specific to Referendum 71. Justice Sonia Sotomayor, writing for herself and Justices John Paul Stevens and Ruth Bader Ginsburg, said “courts presented with an as-applied challenge” to public disclosure laws “should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”

Justice Stevens, writing for himself and Justice Breyer, also said he thinks the as-applied scenario is “unlikely” to be successful. He characterized Protect Marriage’s fear of harassment as “speculative.” (Stevens is retiring this month.)

“For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition law enforcement measures,” wrote Stevens. “…Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships.”

Justice Antonin Scalia wrote a concurring opinion, too, though his position against plaintiffs seemed evident at oral argument.

“There are laws against threats and intimidation,” wrote Scalia, “and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which—thanks to the Supreme Court—campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Scalia’s point that laws already exist to deal with harassment and threats was one highlighted by a brief filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Only two justices suggested hope for Protect Marriage in an as-applied challenge—Justices Sam Alito and Clarence Thomas.

Alito wrote a concurring opinion but said he believes Protect Marriage has a “strong” case through an as-applied challenge.

“The widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case,” wrote Alito. He said Yes on 8 supporters submitted “substantial evidence of harassment suffered by Proposition 8 supporters” during their request to keep cameras out of the courtroom during the Proposition 8 trial.

Thomas said he thinks the “compelled” disclosure of names “severely burdens [First Amendment] rights and chills citizen participation in the referendum process.”

Lambda’s Legal Director Jon Davidson, who was the principal author of the gay groups’ brief, said he thought the majority struck an important balance.

“It’s good the court reaffirmed a high test here,” said Davidson. “You can’t, as a blanket matter, bar the disclosure of the petitions. But if you’re trying to bar [disclosure], you have to show a reasonable probability of harassment –not just a possibility, but a probability.”

Davidson said the ruling is “incredibly important to our community, given the number of measures that have gone on ballots to block gay people’s rights.”

“We have been the target of more initiatives to do that than any other group in the history of initiatives,” said Davidson, “so it’s important for us to be able to see if measures are properly qualified.”

“The real thing going on here,” said Davidson, “has been an attempt by right-wing groups to take away our rights secretly.

Supreme Court upholds disclosure of petitioners’ names

The U.S. Supreme Court today upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

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)

The U.S. Supreme Court today upheld a law that requires public disclosure of the names of people who signed a petition to put an anti-gay referendum on the ballot in Washington State.

The 8 to 1 decision, with only Justice Clarence Thomas in dissent, said the law requiring records of petition signers to be available to the public, does not violate the First Amendment of the U.S. Constitution.

The decision was written by Chief Justice John Roberts, whose questions, during oral arguments, appeared to indicate he would be inclined to strike down the law.

The case, Doe v. Reed, questioned the constitutionality of a Washington State law that makes public the names and addresses of citizens who sign petitions to put various issues onto the ballot. A group called Protect Marriage Washington and two “John Doe” plaintiffs brought the appeal on behalf of citizens who signed a petition to put a referendum on the ballot—Referendum 71—against a new domestic partnership law. They said the public disclosure of their names violated their right to privacy and freedom of speech. A federal district court judge in Seattle had agreed with them but the 9th Circuit U.S. Court of Appeals did not, so they appealed to the U.S. Supreme Court.

Attorneys for the plaintiffs argued that the “First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.”

Chief Justice Roberts said that the State’s interest in preserving the “integrity of the electoral process” was sufficient justification for its Public Records Law (PRA). He said the law helps prevent fraud, mitigates mistakes, and promotes “transparency and accountability in the electoral process.”

He said plaintiffs’ contention that the disclosure law subjected supporters of a referendum on the state domestic partnership law to harassment could not—on that specific referendum—justify striking down the public records law for all referenda.

“Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition,” wrote Roberts, “plaintiffs’ broad challenge to the PRA must be rejected.” He suggested plaintiffs might have more luck with a more narrowly focused legal challenge.

During oral argument, Justice Antonin Scalia, the court’s most staunch conservative and a consistent vote against pro-gay positions, said the First Amendment did not protect citizens “from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.” It was essentially the same point made by five national gay legal and political groups in their friend-of-the-court brief. The gay brief was filed by Lambda Legal Defense and Education Fund, Gay and Lesbian Advocates and Defenders, and the National Center for Lesbian Rights, along with the Human Rights Campaign and the National Gay and Lesbian Task Force.

Scalia wrote an opinion concurring in the judgment, as did several of the other justices.

Kagan — Gays are constituency, not priority

It’s been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.

First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she’s liberal enough to reverse the Defense of Marriage Act.

But there’s surprisingly little support for any of these assumptions in the thousands of emails, memoranda, and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House.

kagan_elenaIt’s been clear since Elena Kagan was nominated to the U.S. Supreme Court that her confirmation hearing would be unusually focused on things gay.

First, there were the complaints that she barred military recruiters from Harvard Law School while she was dean. Then, came rumors that she herself is gay. And finally, there has been a generalized fear expressed by right-wing groups that she’s liberal enough to reverse the Defense of Marriage Act.

But there’s surprisingly little support for any of these assumptions in the thousands of emails, memoranda, and other documents submitted to the Senate Judiciary Committee from the archives of the Clinton White House. Kagan, who served as associate White House counsel from 1995-96 and as an official with the Domestic Policy Council from 1997-99, showed little stomach for tackling gay-related issues.

Strangely, there are no emails or documents addressing the Defense of Marriage Act (DOMA), though the legislation was introduced, passed, and signed by President Clinton in 1996. That was the year Kagan was Associate Counsel and, thus, the point person to advise the president on the constitutionality of bills coming to his desk.

In response to questions during her confirmation hearing to become Solicitor General, Kagan said she “never studied” the Massachusetts Supreme Judicial Court’s 2003 ruling that said gay couples have a state constitutional right to obtain marriage licenses the same as straight couples. The lack of interest seems particularly odd given that she was dean of Boston-based Harvard Law School at the time the decision became globally publicized and discussed—triggering attention from presidential candidates to Congress to the mayor of San Francisco. She told the Senate Judiciary Committee she couldn’t remember making any remarks about the law even though she moderated a panel on the landmark Goodridge decision at Harvard Law School three months after it was issued and during the throes of conflict in the Massachusetts legislature considering ways to undo it.

“I suspect I participated in informal conversation about the decision when it came out,” said Kagan, “but I cannot remember anything I said.”

At least two people close to her support that claim.

Asked in a telephone press conference last month whether Kagan advised Clinton on the constitutionality of DOMA, her then colleague Michael Waldman said, “I don’t know if she offered her view” on DOMA. Asked whether she would have prepared a memo to the president concerning the bill’s constitutionality, he said “possibly.” This reporter has found none thus far.

And Lauren Lucas, who graduated from Harvard Law in 2005 and participated in a White House teleconference with reporters about Kagan, recalled that there was “a lot of student discussion” about the Goodridge decision but Lucas “heard no comment from Kagan.”

In fact, emails from Kagan generally managed to make no comment about gay issues—not even whether she would attend a White House meeting to discuss a gay issue. In response to a February 21, 1997, email she received asking that she attend a “Gays Issues” meeting that afternoon, Kagan’s response complains that she’s gotten notice of the meeting only that day; nothing about whether she would attend.

Two months later, openly gay White House staffer Richard Socarides gave her two days notice and asked her to attend a meeting to discuss hate crimes with a group of “gay and lesbian anti-violence (hate crimes) advocates from around the country.” His email tells her the meeting is at the request of the advocates who wish “to discuss the recent rise in hate crimes directed at gay and lesbian Americans.” Her response is curt and non-committal: “if I can.”

In August of that year, Socarides emailed Kagan asking her “Where are we?” on the “sexual orientation non-discrimination executive order.” Kagan forwarded his email to another policy official to ask, “did bruce really say for maria to do this? Why?”

Bruce Reed was Kagan’s boss, director of the White House Domestic Policy Council. Maria Echaveste was deputy chief of staff. Another email six months later showed the Council was still talking about it.

These are not the machinations of a stealth gay activist. The emails, documents, and testimony at her confirmation hearing for Solicitor General paint a picture of an official who is aware of gays as a constituency but not as a priority.

On “Don’t Ask, Don’t Tell,” her position seemed crafted to walk the most narrow of middle lines. Speaking to a group of senior cadets at West Point in 2007, Kagan said she was “grieved” that the military and law schools were in court, facing off over the policy to exclude gays.

“Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation,” said Kagan. “And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.”

Shortly after Kagan became dean of Harvard Law, in 2003, an Air Force Chief of Recruiting sent an email to superiors indicating that Harvard “folded and conformed to our interpretation” of the Solomon Amendment, “but did so WITH much grumbling.”

While “Don’t Ask, Don’t Tell” preceded Kagan’s time as White House counsel, the Solomon Amendment was passed in 1996, when she was associate councils. The amendment was passed in response to law schools uniting behind a policy of requiring employers who wanted to recruit among their students to abide by a policy of non-discrimination, including no discrimination based on sexual orientation. Kagan inherited the policy as dean at Harvard Law when she took the helm in 2003. That October, an Air Force recruiting chief emailed superiors that “Harvard complied [with the amendment] and treated the [Air Force] the same as other employers.” The report indicated military recruiters were allowed on campus and were not required to sign a non-discrimination statement regarding sexual orientation.

At about that same time, a group of 24 law schools filed a lawsuit against the Solomon Amendment; Harvard was not one of them.

But two years later, in 2005 and after a federal appeals court declared the Solomon Amendment unconstitutional, email exchanges between the Air Force and an assistant dean, suggested the decision on whether to allow military recruiters on campus was up in the air at Harvard and a matter to be decided by “the faculty.” One such email quotes the assistant dean as indicating that Kagan “had made her position (opposition) to military recruiting very clear” but that “the university president [Larry Summers] felt differently.”

A letter from Harvard’s vice president and general counsel informed the Air Force in June 2005—one month after the U.S. Supreme Court indicated it wanted to weigh in on the matter– that military recruiters would have access to recruitment services at the Law School. The Supreme Court reversed the appeals decision and upheld the Solomon Amendment in March 2006.

During her confirmation hearing to become Solicitor General, the Senate Judiciary Committee asked her about the Solomon Amendment. Specifically, some members of the committee wanted to know whether Kagan had encouraged or participated in any protests against the military and whether she abided by guidance from the Association of American Law Schools to take “ameliorative steps” against the amendment.

Kagan’s response was a portrait of caution. She said her approach was to “create a respectful and welcoming environment for gay and lesbian students.” She said Harvard Law never sponsored or organized protests, but that she “made remarks at one assembly organized for this purpose” by the gay student group and “may have attended but not spoken at one other event of this kind.”

Kagan has been more emphatic when asked about “Don’t Ask, Don’t Tell.”

“I can say that, in any case attacking the constitutionality of [the federal law involving Don’t Ask, Don’t Tell],” said Kagan, in response to written questions from Senator Arlen Specter during the February 2009 confirmation hearing, “I would apply the usual strong presumption of constitutionality and give full weight to the factors supporting this presumption, such as the prior appellate court decisions upholding the statute and the doctrine of judicial deference to legislation involving military matters.”

Also during her confirmation hearing to become Solicitor General, Kagan was asked whether she would support the right of health care providers to decline to participate in abortions “because of their moral and religious beliefs.” The question was referring to a rule issued by the Department of Health and Human Services during the second term of President George W. Bush. The rule sought to enable health care providers to abstain from a number of procedures—including insemination of a lesbian— by saying the procedure violated their religious or moral beliefs. Kagan said she didn’t know anything about the so-called “Conscience Rule” but that, if it were a statute attacked on constitutional grounds, she would ask, “is there a reasonable defense to be offered in support of the statute?”

“If so, I would make that defense,” wrote Kagan in her responses.

The Los Angeles Times and other media also found an email from May 1999 in which Kagan described herself as the “biggest fan” in the Clinton White House of the Religious Freedom Restoration Act (later reincarnated as the Religious Freedom Liberty Act). What they didn’t report, however, is that, in an email one month earlier, Kagan acknowledged, “the gay community, supported by many civil rights groups, oppose RLPA as currently drafted.”

“RLPA could provide a religious liberties defense to many state laws, including some civil rights laws, such as fair housing laws that prevent discrimination against gays and lesbians and unmarried persons,” wrote Kagan in the April 29, 1999, email to Bruce Reed. “This result is not certain, but it is certainly possible, at least in some states.”

In the later email, she warned then Vice President Al Gore’s staff that they’d have a “gay/lesbian firestorm” on their hands if Gore endorsed the legislation.

It was another example of Kagan seeing the gay community as a constituency, not a priority. But on at least one occasion, a May 27, 1997, memo co-written by Kagan and Reed, the constituency got a nod. The memo expresses concerns about a proposed race commission and suggests, as an alternative, that President Clinton lead a series of “town halls” on race-related issues or that the White House host a conference on such issues. The Reed-Kagan proposal notes that those options could also “accommodate some attention to issues of intolerance” against other minorities, including gays and lesbians.

Richard Socarides, who was White House liaison to the gay community during the Clinton years, suggests that the portrait painted by this latter memo is a more accurate one than are the various emails.

“I worked with her and got to know her quite well during that period of 1996 to 99,” said Socarides. “She was very supportive of what the president was trying to do around creating greater equality for gays and lesbians. She was very supportive of the mission that he had given me—to make sure, to the extent possible, that gays were included and a part of every relevant policy discussion that took place.”

Socarides said he doesn’t remember Kagan being at any of the White House meetings on DOMA, but that he did talk to her “early on” about his proposal to have the president issue an executive order on sexual orientation discrimination in the federal workplace.

“She was on board from the start,” said Socarides.

Socarides said he simply couldn’t explain why Kagan’s email concerning the proposed executive order appears to question why the administration should issue it. The order, issued in May 1998, declared that a Civil Service law requirement that a federal employee’s “conduct not related to job performance” (such as the employee’s sexual orientation) could not be a basis for discrimination.

“Her reaction was like, ‘Sounds right to me, let’s do it,’” said Socarides. “She was never dragging her feet on this or any gay stuff.”

Many of these issues are likely to come up when the Senate Judiciary Committee holds its confirmation hearings, starting Monday, June 28.

Federal Departments Mixed in Promotion of LGBT Rights

A panel of six LGBT activist leaders in April were asked to grade the Obama administration thus far on LGBT issues. Three panelists gave the administration a “D,” two gave it a “B,” and one a “C.” Keen News Service decided to take a look at eight major federal departments and apply a similar grading system.

A panel of six LGBT activist leaders in April were asked to grade the Obama administration thus far on LGBT issues. Three panelists gave the administration a “D,” two gave it a “B,” and one a “C.” Keen News Service decided to take a look at eight major federal departments and apply a similar grading system.

The result was strikingly similar to that of the April 22 LGBT Leadership Townhall panel, hosted by Sirius XM Radio’s Michelangelo Signorile Show. The panel’s average came to 1.8 on a scale that gives 1 point for a D and 4 for an A. The KNS analysis came up with a 2.0.

The Departments of State and Housing and Urban Development each earned a “B” from KNS, a grade given for taking significant steps toward equal rights for LGBT people, even if some inequities remain. Health and Human Services and the Office of Personnel Management each earned a “C,” given for taking some steps toward equal rights and making no efforts to obstruct equality, while many or major inequities remain within that department’s purview. And Defense, Justice, and Education each earned a “D,” for taking few steps toward improving equal rights and making some efforts to obstruct such rights.

None of the departments warranted an “A,” for taking significant and comprehensive steps toward improving equal rights for LGBT people—or an “F,” for doing nothing to improve equal rights for LGBT people and also taking steps to block such equality.

Department of State (DOS): The DOS said it would provide the same benefits to the same-sex partners of foreign service employees sent abroad as to opposite-sex spouses, including diplomatic passports, use of U.S. medical facilities, emergency evacuation, and training at the Foreign Service Institute.

Two major items are not covered, however: health care and retirement benefits. President Obama, in a memo requesting partner benefits for federal employees, stated that federal law prevents his administration from extending those benefits.

DOS has additionally changed two policies regarding passports. A person in a legal same-sex marriage can apply for a new passport using his or her taken (married) surname, and a transgender person can change the gender listed on their passport without needing gender reassignment surgery, simply certification from an attending medical physician.

Secretary of State Hillary Clinton has publicly decried Uganda’s proposed harsh anti-gay bill, and spoken directly with Ugandan President Yoweri Museveni about it. Karl Wycoff, Deputy Assistant Secretary of State, testified at a January House hearing on the Ugandan bill, and said the U.S. embassy in Uganda has been working with the Ugandan government and local gay and lesbian groups to stop the legislation.

The DOS also issued a statement condemning the Malawi government’s sentencing of a couple—a gay man and a transgender woman—to 14 years of hard labor for “carnal knowledge against the order of nature” and “gross indecency.”

The DOS worked with President Obama to appoint David Huebner as U.S. Ambassador to New Zealand in December 2009. Huebner is the first openly gay person to be appointed to an ambassadorship in the Obama administration, and the third in U.S. history.

Grade: B.

Housing & Urban Development (HUD): HUD has commissioned the first-ever national study of discrimination against LGBT people in the rental and sale of housing. Already, it has conducted town hall meetings in three cities to solicit input for shaping the study.

HUD Secretary Shaun Donovan has also proposed policy changes that would stop discrimination on the basis of sexual orientation or gender identity in HUD’s core housing programs, require those who participate in HUD programs to comply with local anti-discrimination laws that cover sexual orientation and gender identity, and end mortgage-loan discrimination based on sexual orientation and gender identity. The policies are being drafted and will go through a period of public comment before being enacted.

HUD has two openly gay appointees who required Senate confirmation, Raphael Bostic, Assistant Secretary for Policy Development and Research, who will be overseeing the LGBT discrimination study, and Mercedes Marquez, Assistant Secretary for Community Planning and Development.

Grade: B.

Department of Commerce (DOC): The DOC changed Census Bureau policies in order to retain data on same-sex couples reporting themselves as “married.” The Census Bureau also cooperated with Our Families Count, a coalition of LGBT organizations, on an education campaign to motivate LGBT Americans to take part in the 2010 Census.

The DOC has two openly gay appointees requiring Senate confirmation, Michael Camunez, Assistant Secretary for Market Access and Compliance, and David Mills, Assistant Secretary for Export Enforcement.

The National Gay & Lesbian Task Force’s Queer the Census project, however, is still working to have questions about sexual orientation and gender identity included in future Census surveys.

Grade: B.

Health and Human Services (HHS): HHS Secretary Kathleen Sebelius and Kathy Greenlee, the openly lesbian Assistant Secretary of the Administration on Aging, announced plans to establish the first national resource center for LGBT seniors. To that end, they awarded a three-year, $900,000 grant to Services & Advocacy for Gay, Lesbian, Bisexual & Transgender Elders (SAGE).

In addition to Greenlee, HHS has one other LGBT appointee requiring Senate confirmation, Richard Sorian, Assistant Secretary for Public Affairs.

HHS in July 2009 ended its longstanding policy of banning people with HIV/AIDS from traveling to the U.S. The department also worked with President Obama and Congress to reauthorize the Ryan White HIV/AIDS Treatment Extension Act, the largest federal program dedicated to HIV care and treatment.

HHS is now drafting rules to support the President’s memo ensuring hospital visitation and decision-making rights for patients’ designees, including same-sex partners. They will then make the proposed rules available for public comment before enacting them, a process expected to take several months.

And a draft of “Healthy People 2020,” a decennial document to set national goals for health and reduce health disparities, includes sexual orientation and gender as attributes that may cause disparities.

LGBT disparities were in fact noted in Healthy People 2010, the version published in November 2000 under President Clinton. For the 2020 version, a commentary submitted by the National Coalition for LGBT Health and many major LGBT organizations calls for more acknowledgement of gender identity and greater inclusion of LGBT demographics in all relevant federal health surveys.

HHS, however, through its U.S. Healthy Marriage Demonstration Fund, continues to provide over half a million dollars a year to the anti-LGBT Iowa Family Policy Center (IFPC). The grants, begun under President George W. Bush, go from the IFPC to a third-party marriage-counseling program called Marriage Matters, reported the Iowa Independent. The American Civil Liberties Union of Iowa told the Independent May 7 that it plans to investigate whether the grants violate the separation of church and state.

And an HHS committee in June voted to uphold the lifetime ban against blood donation by men who have sex with men. People who have sex with someone of the opposite sex who is HIV positive, however, must only wait one year. The committee heard testimony from Peter Sprigg, senior fellow of the ultra-conservative Family Research Council, among others.

Grade: C.

Office of Personnel Management (OPM): Head of the department is John Berry, the highest-ranking openly gay official in any federal administration. Elaine Kaplan, his general counsel, and Vic Basile, Senior Counselor to the Director, are also openly gay.

Under Berry, OPM added gender identity to sexual orientation in the Equal Employment Opportunity statement for federal employment.

Last June, President Obama directed federal agencies to determine what benefits they could make available to the same-sex partners of federal employees under existing laws. OPM worked with the Department of Justice to review the information and recommend to the president that he extend all of the identified benefits.

Berry, however, ordered the health insurance carrier of a lesbian federal employee not to comply with a 9th Circuit Court order to include her partner on her insurance plan. He explained at the National Gay & Lesbian Task Force’s 2009 Leadership Conference that Kaplan and the DOJ both concluded that neither OPM nor the president have the authority to provide such benefits. He said that is one reason the Domestic Partnership Benefits and Obligations Act, which would institute these benefits, is so important.

Grade: C.

Department of Defense (DOD): Secretary of Defense Robert Gates and Chair of the Joint Chiefs Adm. Mike Mullen have told Congress they would implement repeal of Don’t Ask, Don’t Tell (DADT) if Congress approves it, and Mullen said he personally believes that’s the right thing to do. Gates in March approved new regulations that make it more difficult for gay and lesbian servicemembers to be discharged under the policy.

On April 30, however, Gates said Congress should not pass its own repeal of DADT before he can complete a study on its impact and come up with an implementation plan. On May 25, he said he would accept a proposed congressional amendment that would repeal DADT but not go into effect until after the DOD study is complete—but he would still prefer that Congress wait until after the study before passing legislation. The study is due December 1.

The DOD boasts one openly gay appointee who required Senate confirmation, Douglas Wilson, Assistant Secretary of Defense for Public Affairs.

Grade: D.

Department of Justice (DOJ): The DOJ filed briefs in Smelt v. U.S. and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services et al. strongly defending the Defense of Marriage Act, and in Log Cabin Republicans v. U.S., defending Don’t Ask, Don’t Tell.

Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, did, however, issue a strong statement in support of the Matthew Shepard and James Byrd Hate Crimes Prevention Act. Mara Keisling, executive director of the National Center for Transgender Equality, said at the LGBT Leadership Townhall that DOJ has been doing “spectacular” community education around the Act.

She explained in an interview that NCTE has been working with The Leadership Conference on Civil and Human Rights to help train the DOJ’s Community Relations Service (CRS) about LGBT-related hate crimes. Based on that experience, she believes CRS “wants to implement the law right,” according to the spirit as well as the letter of the law. The DOJ is also preparing to train local law enforcement about the Act this summer.

And in June, the DOJ’s Office of Legal Counsel issued a memo stating that federal prosecutors may use the Violence Against Women Act in cases of interstate stalking and domestic violence involving same-sex couples.

Earlier this year, the DOJ also filed a motion to intervene in the case of a New York teen who was bullied and physically assaulted at his public school for being effeminate. DOJ lawyers backed arguments made by the New York ACLU, which said that Title IX of the federal Equal Opportunity in Education Act, which prohibits gender-based discrimination, also applies to discrimination based on actual or perceived sexual orientation and gender expression.

The DOJ motion was still pending when a settlement was reached between the school district and the student. In the settlement, the court noted the U.S.’s desire to intervene and its wish to resolve the student’s claim without further litigation.

Although NPR reported the case as “a novel interpretation of the Title IX statute,” Title IX was in fact used in at least three federal cases under President Clinton and two under President George W. Bush to combat harassment based on sexual orientation or gender non-conformity.

There are three openly gay Obama appointees to the DOJ that required Senate approval: Jenny Durkan, U.S. Attorney for the Western District of Washington, Sharon Lubinski, U.S. Marshal, and Laura Duffy, U.S. Attorney for the Southern District of California.

The DOJ plans to hold a Pride event later this month with Attorney General Eric Holder, Perez, Lubinski, and Durkan in attendance.

Grade: D.

Department of Education (DOE): The LGBT community had high hopes for the DOE when President Obama appointed openly gay Kevin Jennings, founder of the Gay, Lesbian, and Straight Education Network, as head of Office of Safe and Drug-Free Schools (OSDFS).

The OSDFS budget was slashed 40 percent even before Jennings took office, however. The remaining money will be used to fund a “Successful, Safe, and Healthy Students” program that will provide grants for schools to address a variety of problems. Anti-bullying programs that include LGBT-based bullying could be one possible component.

The DOE has done little else to address the high incidence of bullying based on real or perceived sexual orientation and gender identity.

No DOE officials testified in a July 2009 House committee hearing on “Strengthening School Safety through Prevention of Bullying.”

The DOE included no specific call for federal anti-bullying protections or programs in the Blueprint for Education that sets forth President Obama’s framework for a major reform of education policies, despite bills in Congress that would provide such protections.

The DOE has also issued no statements on the several bullying-related youth suicides—at least two of which were because of harassment based on perceived sexual orientation—that have occurred since President Obama took office.

Grade: D.

There were also LGBT-related developments in agencies not covered above. The IRS, for example, said in June that same-sex domestic partners in California must combine their incomes and each report half when they file their tax returns. This is consistent with the way that married opposite-sex couples file under California’s community-property law.

Prop 8 closing: Fear v. Equality

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers.

Judge Vaughn Walker
Judge Vaughn Walker

There were so many people trying to get in to watch the final day of the landmark trial challenging California’s same-sex marriage ban, the court staff had to set up an additional overflow room for observers. Those dozen or so members of the public who managed to snare seats in Courtroom 6 on the 17th floor of San Francisco’s federal courthouse building had to stand in line starting at 5:45 Wednesday morning to get them.

But gays in California are used to standing in line. They stood in line exactly two years ago—June 16, 2008—to be among the first same-sex couples to obtain marriage licenses in the state. Now, they were watching closing arguments in Perry v. Schwarzenegger, an historic case challenging the November 2008 initiative that took away the right for gay couples to obtain marriage licenses in California.

Conservative icon Ted Olson, one of the most famous attorneys in the country, choked back some emotion as he talked about the “grave and irreparable harm” Proposition 8 inflicts upon gay people. And he implored U.S. District Court Judge Vaughn Walker to muster the courage to strike down the law in the same way the California Supreme Court had been the first to strike down the ban against interracial marriages in 1948.

His conservative opponent, Charles Cooper, for the Proposition 8 supporters, passionately regretted in court Wednesday a statement he made a year ago at a preliminary hearing. At that hearing, Judge Walker asked Cooper what harm allowing gays to marry might wreak upon straight couples’ ability to procreate. Cooper had replied, “I don’t know,” and was repeatedly quoted in the media as saying so.

“I don’t know how many times, Your Honor, I had wished I could have those words back,” said Cooper, as the courtroom erupted in laughter. “Whatever your question is now,” he said, gesturing boldly, “I damn sure know. Whatever it is.”

To that, Judge Walker asked Cooper to explain what the Yes on 8 team’s expert witness David Blankenhorn meant when he testified at trial in January that, “America will be more American or will be closer to the American idea” when same-sex marriage is legalized.

Cooper said he thought Blankenhorn was “giving voice to a sentiment” shared by many Americans but that that sentiment does not overcome “the threat of harm to a central and vital institution—marriage.”

Judge Vaughn pressed Cooper several times to identify specific evidence and witnesses that demonstrated this harm, but Cooper, instead, talked of the potential for unforeseen consequences.

“It is not possible to predict with certainty and confidence” what change might come about to marriage as an institution should same-sex marriages be legalized, said Cooper, but it “could be profound.”

“It could portend some social consequences that would not be good ones,” added Cooper. “And that reality—that I didn’t know—is because no one can know.”

Cooper argued that this fear of unknown consequences is a “rational basis” for the ban on same-sex marriage.

“If there is a legitimate and rational basis to be concerned about,” he said, “it couldn’t be more rational for the people of California to say, ‘We aren’t going to run that risk. . . . We’re going to wait. We want to see what happens in Massachusetts. We want to see what happens right here, and elsewhere.’ And perhaps,” said Cooper, “Mr. Olson and his clients, whose sentiments are powerful, will be able to convince their fellow Californians that, in fact, they’re right.”

“Is the ‘I don’t know’ answer enough?” pursued Judge Walker.

“It is,” said Cooper.

Not surprisingly, Olson disagreed, and he had U.S. Supreme Court citations to back it up. He pointed to a 1985 decision—Cleburne v. Cleburne—in which “the Supreme Court did say . . . that mere negative attitudes, fear, or unsubstantiated factors or assertions wouldn’t be sufficiently cognizable.”

“They just don’t know,” said Olson of supporters of Proposition 8. “That is the essence of their case as it comes to the end of the trial and the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage, and I submit the overwhelming evidence in this case proves that we do know. And the fact is allowing [same-sex marriage] will not deter heterosexuals from marrying or staying married or from having babies…[but] strengthens the institution of marriage for heterosexual and homosexual persons and their children.”

“Ted Olson cleaned Cooper’s clock,” said Kate Kendell, head of the National Center for Lesbian Rights. She called Olson’s performance “brilliant” and “meticulously prepared” and Cooper’s arguments “thin and ludicrous.”

“Olson, and the whole trial, made clear that voter attitudes about gays is just not enough to justify such a damning exclusion,” said Kendell. “It was a bravura performance—start to finish—and an honor to watch.”

Jenny Pizer, head of Lambda Legal Defense and Education Fund’s Marriage Project, said Olson did “an effective job” of hammering home the U.S. Supreme Court precedent supporting the “freedom to marry as a right of individuals that is so basic and important that the state cannot abridge it. . . .”

Walker also asked questions about “when is it appropriate for the judiciary to weigh in on legal and constitutional questions that may touch on sensitive social issues.” When the U.S. Supreme Court overturned laws against interracial marriage, with Loving v. Virginia, he noted, the political tide was already turning in favor of doing so—only about a dozen states still had such laws in 1967, down from a high of 41.

“Do we have such a political tide here that’s going to carry the Supreme Court?” he asked.

“I believe there is a political tied running,” said Olson. “And I think that people’s eyes are being opened. People are becoming more understanding and tolerant.” But Olson said the court should not require political polling to be “a few points higher” before ruling against discrimination.

“Some judge is going to have to decide what we have asked you to decide,” said Olson, “and there will never be a case with a more thorough presentation of the record.”

Judge Walker will, of course, decide. The primary questions before him are whether California’s ban on same-sex marriage violates the federal constitution’s guarantee to equal protection and due process. Assuming he rules that the ban does so, he must then determine whether there is some reason that justifies the ban. And related to that inquiry, he must decide how compelling a reason is required in order to trump the constitutional rights of gay citizens.

“I’ll be floored if he does not offer the Ninth Circuit [U.S. Court of Appeals] his conclusions about whether very rigorous scrutiny should be applied to antigay discrimination,” said Lambda’s Pizer.

Kendell said she thinks Walker will use “some higher level of scrutiny” than just a simple “rational” one—the easiest level to satisfy. The higher levels of review—quasi and strict—she noted would be “enormously helpful in challenging all manner of laws that discriminate based on sexual orientation.”

The highest level of review—strict scrutiny—is applied to laws that disfavor persons on the basis of race, and Olson relied heavily on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has “traditionally” been understood to be one man and one woman does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “Because I said so” type reason that “would justify racially segregated schools” in the sixties.

But if Walker applies the lowest level of scrutiny, said Kendell, “virtually every state law we attack survives because, at the rational basis level, laws essentially get a free pass.”

Mid-day report: Prop 8 trial closing arguments

Conservative attorney Ted Olson relied heavily this morning on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960’s on interracial marriage.

Ted Olson
Ted Olson

Conservative attorney Ted Olson relied heavily this morning on comparisons between the current ban on same-sex marriage and the ban that existed in the 1960s on interracial marriage. The claim by supporters of Proposition 8, he said, that marriage has traditionally been understood to be one man and one woman, does not constitute a reason to ban same-sex marriage.

That, said Olson, is a “because I said so”-type reason. That “would justify racially segregated schools” in the 60’s.

U.S. District Court Judge Vaughn Walker fired off some tough questions for Olson, who was leading the legal team challenging California’s same-sex marriage ban.

He noted, for instance, a Supreme Court decision that said “any debatable” explanation would pass muster. But the questions had the tone of a devil’s advocate. And Olson quickly cited Supreme Court decisions that held negative attitudes about a group such as gays cannot be used to justify a law.

The San Francisco courtroom was filled to capacity Wednesday morning, with room enough to accommodate only about a dozen members of the public, who waited in line since 5:45 a.m. to get in.

Closing arguments continue this afternoon with Judge Walker hearing from supporters of Proposition 8.

Test your LGBT IQ

It’s LGBT Pride Month and time to check your LGBT-IQ.

Only one question this year: Besides the measures on the House and Senate Defense authorization bills to repeal Don’t Ask, Don’t Tell, name the other 25 LGBT-specific bills pending in Congress right now.

Barney Frank
Barney Frank

It’s LGBT Pride Month and time to check your LGBT-IQ.

Only one question this year: Besides the measures on the House and Senate Defense authorization bills to repeal Don’t Ask, Don’t Tell, name the other 25 LGBT-specific bills pending in Congress right now.

ENDA? Yes—the Employment Non-Discrimination Act. That’s two: a bill in the House and one in the Senate. Both have had hearings but neither has had a committee vote.

Hate crimes? No—that passed last fall, attached to the Defense authorization bill for fiscal year 2010. The president signed it into law on October 28.

Repeal DOMA? Yes, that’s one bill, in the House; though it isn’t sponsored by the most veteran of Congress’ three openly gay members and has gone exactly nowhere since it was introduced last September. Not even a hearing. Not likely to go anywhere either, though it has 111 co-sponsors.

Ryan White? No, that’s not really an LGBT bill. It’s an HIV medical treatment funding bill. But it is of interest to the community and it, too, was signed into law last fall.

Twenty-three more to go. . . .

Give up?

Don’t feel bad. Most people can’t name them. And most of these bills are going nowhere this year anyway.

But for those readers hoping to refine their LGBT-IQ during the month of June, here’s a quick primer, categorized by their proximity to passage:

Poised for passage (2):

Don’t Ask, Don’t Tell repeal – two individual stand-alone bills (one in the Senate, one in the House) to repeal the military’s policy of excluding gays were introduced by Senate Joe Lieberman (I-Conn.) and Rep. Patrick Murphy (D-Penn.). The full House, in considering a Defense authorization bill, approved adding an amendment that put the repeal measure into the annual funding bill. The Senate Armed Services Committee put a similar amendment into its Defense funding bill and then sent it to the full Senate. Now, all eyes are on the full Senate where Republicans are expected to try and sabotage the repeal measure or filibuster the entire funding bill. Then, the funding bill will go to a House-Senate conference committee where members must decide on one final version. DADT repeal could be won or lost anywhere along the line, and most likely before August. But the way the measure is now written –requiring Pentagon certification before it can be implemented—it could be a failed effort even if it does pass Congress.

On the verge of a vote (4):

Employment Non-Discrimination (ENDA) – House Speaker Nancy Pelosi promises the House bill, to prohibit discrimination based on sexual orientation and gender identity, will get a vote this year. But she won’t move the bill until DADT (see above) passes, and she can’t promise ENDA will pass. Rumblings of conservative Democrats and moderate Republicans in the press suggest some level of uneasiness around the inclusion of gender identity. Republicans are expected to try and kill the bill, sponsored by Rep. Barney Frank (D-Mass.), with scare tactics –saying it will lead to cross-dressing teachers for kindergartners and men with beards wearing dresses to gain access to women’s restrooms. Meanwhile, there are no promises in the Senate and Senate Majority Leader Harry Reid (D-Nev.) did not even mention the bill, sponsored by Sen. Jeff Merkley (D-Ore.), at the top of this month when outlining the work ahead.

Domestic Partner Benefits/Obligations (aka DPBO) – Both the Senate bill, sponsored by Lieberman, and the House bill, sponsored by Rep. Tammy Baldwin (D-Wisc.) have passed committee and both have gotten two public nods from President Obama. The House bill has 140 co-sponsors; the Senate one has 31. But they’re gathering dust waiting for their moments on the floor for two reasons: 1. The health care reform bill overshadowed everything until March of this year, and 2. There are unresolved issues about how to pay for the bills. Until that happens—and it might—they’ll continue waiting in the wings while time runs out on this Congressional session.

Going nowhere this session (19):

Tax Equity for Health Plan Beneficiaries – This bill, introduced by Rep. Jim McDermott (D-Wisc.) and Senator Charles Schumer (D-NY), has the same “payfor” issues as the Domestic Partner bill. But it has only 44 co-sponsors in the House and 17 in the Senate, and neither has passed committee.

Respect for Marriage – Rep. Jerrold Nadler (D-NY) is the only legislator in Congress to introduce a bill this session to seek repeal of the federal Defense of Marriage Act (DOMA). The bill has a respectable 111 co-sponsors but is not as high a priority as DADT and ENDA or even DPBO among LGBT activists in Washington. Plus, politically, it’s a tougher sell in a mid-term election year at a time when the latest poll (Gallup, in May) showed only 44 percent of the American public thinks gays should be able to marry. There is no Senate counterpart and the bill has seen no action since being introduced last September.

Every Child Deserves a Family – This bill, from Rep. Pete Stark (D-Calif.), seeks to end discrimination based on sexual orientation or gender identity in the adoption of a child. It has 26 co-sponsors, no Senate counterpart, and has seen no action since being introduced last October.

Family Leave Insurance – This bill, introduced by Rep. Stark, would expand the existing federal Family and Medical Leave Act (FMLA) in a number of ways and, of particular interest to the LGBT community, enable employees to take leave in order to care for a domestic partner or child of a domestic partner. Their bill has only 35 co-sponsors, has no counterpart in the Senate, and has seen no action seen being introduced in March of last year.

Family and Medical Leave Inclusion – This bill, introduced by Rep. Carolyn Maloney (D-NY) along with the three openly gay representatives in Congress, would also amend the FMLA but only for the purpose of enabling gay employees to take leave to care for “a same-sex spouse, domestic partner, parent-in-law, adult child, sibling, or grandparent who has a serious health condition.” The bill has 29 co-sponsors, no counterpart in the Senate, and has seen no action seen being introduced in April of last year.

Uniting American Families – With immigration being such a hot issue these days, one would expect this legislation—introduced by Sen. Patrick Leahy (D-Vt.) and Rep. Nadler—to have seen some action, but it hasn’t. The House bill has 124 co-sponsors; the Senate bill 23. Leahy, chair of the Senate Judiciary Committee, held a hearing last June, and there was talk of including the measure as part of an overall immigration reform bill. But so far, nothing else has happened.

Equal Rights for Health Care – This bill, introduced by Rep. Laura Richardson (D-Calif.), would prohibit discrimination based on sexual orientation, gender identity, and other characteristics in the delivery of health care services or federally funded health research. It has only 13 co-sponsors, no Senate counterpart, and has gone nowhere since being introduced in June 2009.

Freedom from Discrimination in Credit – Rep. Frank chairs the powerful House Financial Services Committee where this bill has sat quietly since being introduced by Rep. Steve Israel (D-NY) with Frank and 75 co-sponsors. It would amend the Equal Credit Opportunity Act to prohibit discrimination based on sexual orientation or gender identity in credit services. There is no Senate counterpart and no movement in sight.

Student Non-Discrimination – Rookie Congressman Jared Polis (D-Colo.), who is both openly gay and a staunch advocate for education, introduced this bill in January 2010, seeking to prohibit discrimination based on actual or perceived sexual orientation or gender identity in public schools. It has the support of 111 co-sponsors, including Reps. Frank and Baldwin. Its counterpart in the Senate was introduced by rookie Senator Al Franken (D-Minn.) and has 23 co-sponsors. But neither bill is expected to see action this year.

Safe Schools Improvement – Rep. Linda Sanchez (D-Calif.) introduced this bill in the House to amend the Safe and Drug-Free Schools and Communities Act to collect data on and move to prevent bullying. It specifically identifies one form of bullying as targeting students based on real or perceived sexual orientation or gender identity. And it has 113 co-sponsors. There was a push to include this as part of the Obama administration’s proposed reform of No Child Left Behind, but the proposal submitted by the president did not include it. Rep. Danny Davis (D-Ill.) introduced a similar bill in April, but has only five co-sponsors. There is no Senate counterpart and no action likely.

Health Equity and Accountability – This bill, introduced by Rep. Donna Christiansen (D-Virgin Islands), seeks to have the Department of Health and Human Services collect data on health matters related to sexual orientation and a number of other characteristics, but it calls on HHS to develop a plan to eliminate disparities in health care on the basis of race, ethnicity, and primary language only. It has 58 co-sponsors (including Rep. Baldwin), no Senate counterpart, and has seen no action since its introduction in June 2009.

Equal Access to COBRA – COBRA, or the Consolidated Omnibus Budget Reconciliation Act of 1986, is a federal law that enables employees who to keep their existing job-related health insurance coverage for themselves and their families for 18 months after they’ve lost their jobs. This bill, from Senator Barbara Boxer (D-Calif.) would enable gay employees to continue their coverage for their domestic partners. The bill, introduced in March 2010, has no co-sponsors, no counterpart in the House, and no prospects for this session of Congress.

Housing – three nearly identical bills – In March, three legislators introduced three nearly identical bills prohibit discrimination based on sexual orientation and gender identity in real estate transactions and brokerage services: the Fair and Inclusive Housing Rights from Rep. Nadler has two co-sponsors, the Housing Nondiscrimination Act from Rep. Edolphus Towns (D-NY) has none, and the Housing Non-Discrimination Act from Rep. Joe Sestak (D-Penn.) also has no co-sponsors.

Keep in mind: This primer expires when the 111th Congressional session adjourns at the end of this year. All bills left pending must be reintroduced and start down the political passage tracks all over again, from the top.

Fed partner benefits: The ‘pay-for’ hurdle

When President Obama issued a memorandum extending certain benefits to the same-sex partners of federal employees, he noted there are still certain benefits he cannot extend under current law. But the legislation the president and many LGBT organizations are touting as a solution faces one big hurdle that nobody’s talking about.

Tammy Baldwin
Tammy Baldwin

When President Obama issued a memorandum June 2 extending certain benefits to the same-sex partners of federal employees, he noted that there are still certain benefits he cannot extend under current law. But the legislation that the president and many LGBT organizations are touting as a solution faces one big hurdle that nobody’s talking about—how to pay for it.

The Domestic Partnership Benefits and Obligations Act (DPBOA) seeks to extend health insurance and retirement benefits to the domestic partners of federal employees just as they already are extended to opposite-sex spouses. The bill passed the Senate Committee on Homeland Security and Governmental Affairs in December 2009 and the House Judiciary Committee in January 2010.

One major difference between the two versions is that the House version, sponsored by Rep. Tammy Baldwin (D-Wisc.), would extend benefits to federal retirees, as well as to current employees. The Senate version, sponsored by Sen. Joe Lieberman (I-Conn.), would not.

The difference gives the two versions very different price tags. The Senate version of the bill contains $113 million in so-called “on-budget” direct spending; the House version has $354 million.

The Advocate and Washington Blade reported in late May that Rep. Baldwin said she had received information from the Office of Personnel Management (OPM) identifying how the costs of the bill will be covered—the so-called “pay-for” data.

But Jerilyn Goodman, a spokeswoman for Baldwin’s office, told Keen News Service June 7, “We are working closely with [the Senate] and OPM to put together a pay-for that covers current retirees/annuitants.” A spokesperson for OPM also said they are still working on the pay-for information. And an aide for the Democratic leadership confirmed June 8 that, “The pay-for issue is not resolved.”

That may delay the bill’s ability to move forward, despite the recently restated support of the president.

And in the wake of the President’s June 2 memo on partner benefits, House Speaker Nancy Pelosi issued a press release that indicated DPBOA might not be a priority.

While expressing support for DPBOA, she also noted, “Right now, we are working to finalize the defense authorization bill, which will repeal the discriminatory ‘don’t ask, don’t tell policy.’” The House passed the Defense measure May 27 but must wait for the Senate to approve its version and then go into conference committee to agree on one final version.

Even if DPBOA passes, however, the benefits to same-sex partners will not be treated the same as those offered to opposite-sex spouses. Health insurance benefits that an employee receives for a same-sex partner are considered taxable income by the federal government, whereas for an opposite-sex spouse, they are not.

A study by the Center for American Progress and UCLA’s Williams Institute in 2007 found that employees with partners pay an average of $1,069 per year more in taxes than married employees with the same coverage. Collectively, they pay $178 million per year in additional taxes, and U.S. employers collectively pay $57 million per year in additional payroll taxes.

A bill to equalize tax treatment of health insurance benefits, the Tax Equity for Health Plan Beneficiaries Act (TEHPBA), is in the House Ways and Means Committee, sponsored by Rep. Jim McDermott (D-Wash.) and in the Senate Finance Committee, sponsored by Sen. Charles Schumer (D-N.Y.) The bill would apply to all employees, not just federal ones.

Goodman said that Rep. Baldwin’s office worked closely with McDermott’s office to get TEHPBA included in the health reform bill that passed the House this year, but the language was not in the Senate bill that the president eventually chose to pursue. The legislators are continuing to work for passage of the measures as standalone bills, but, though related, DPBOA and TEHPBA cannot be combined because they each go through different committees, said Goodman.

McDermott’s communications director, Ed Shelleby, said, “We’re very hopeful that [TEHPBA] will get passed this year” as a stand-alone but that “we are also investigating if there are other appropriate bills to which the provisions could be attached.” They are also re-evaluating the cost of the bill, he said, explaining that some provisions in the new health care reform law may lower original estimates.

Health benefits aside, even the limited benefits extended under current law to partners of federal employees by the president’s June 2 memo will not all take effect right away.

The regulations governing several of the benefits must still go through a months-long process before they will be put into their final form and the benefits can take effect. OPM must publish proposed regulations in the Federal Register regarding the addition of a same-sex partner to the list of individuals presumed to have an insurable interest in a federal retiree. It must do the same for clarifying that employees’ same-sex partners qualify as “family members” for purposes of noncompetitive appointments. The General Services Administration must publish proposed regulations regarding relocation and travel expenses.

The proposed regulations will be subject a period of public comment—typically 60 days—before final versions will be drawn up (which could again take months) and can become active.

Judge’s Prop 8 questions portend ‘blockbuster’

The federal judge presiding over the highly publicized Proposition 8 trial distributed to attorneys on both sides of the controversy a list of 39 questions he’d like them to address during closing arguments June 16. It’s the kind of list, said one veteran gay legal scholar, that promises his decision will likely be a “blockbuster in its scope.”

U.S. District Court Judge Vaughn Walker
U.S. District Court Judge Vaughn Walker

The federal judge presiding over the highly publicized Proposition 8 trial distributed to attorneys on both sides of the controversy Monday a list of 39 questions he’d like them to address during closing arguments June 16. It’s the kind of list, said one veteran gay legal scholar, that promises his decision—whatever that turns out to be—will likely be a “blockbuster in its scope.”

Among the questions Walker poses are: “What does it mean to have a ‘choice’ in one’s sexual orientation?” and “If spouses are obligated to one another for mutual support and … if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?”

High-profile attorneys Ted Olson, challenging Proposition 8, and Charles Cooper, defending it, will attempt to answer those questions in their closing arguments before Walker Wednesday in the U.S. District Court for Northern California, in San Francisco. If they choose, they can also do so in writing before that proceeding is adjourned.

But after June 16, Walker will take all the arguments he’s heard and all the facts he’s been delivered back to his chamber to render a decision.

Nan Hunter, who for nine years headed up the ACLU’s National Gay and Lesbian Rights Project and is one of the most veteran and respected scholars in LGBT legal matters, said Walker’s questions suggest he may have already drafted an opinion in the four months since he adjourned the evidentiary segment of the trial, in late January.

The detail and breadth of the questions, she noted, “are literally all over the place, but in a good way.”

“Since I assume that most of them arose from a draft of the opinion,” said Hunter, “the list strengthens my expectation that this decision will be a blockbuster in its scope.”

“Judge Walker seems to be preparing an opinion that will comb through the evidentiary record,” said Hunter, referring back to his question list, “to discuss history (how can a right be characterized as fundamental, given the Supreme Court’s focus on tradition, when it did not exist in American society until a few years ago), culture (what is the difference between gays and lesbians on one hand and heterosexuals on the other), social theory (why is the ‘deinstitutionalization’ of marriage bad), and psychology (could sexual orientation be immutable for men but not for women).” (Hunter’s discussion of the question list can be read at Hunter of Justice.)

One question that stands out for Hunter and other LGBT attorneys watching the case is the first: It asks attorneys challenging Proposition 8 to assume that it has been established that Proposition 8 is not rationally related to a legitimate state interest but that “voters genuinely…believed” it was. “Do the voters’ honest beliefs, in the absence of supporting evidence, have any bearing on the constitutionality of Proposition 8?”

“That,” said Hunter, “alludes to a fundamental conflict in constitutional democracy that has been with us since the founding.”

The key question before Walker, as a judge, however, is whether California’s ban on same-sex marriage, passed as an initiative by voters in November 2008 as Proposition 8, violates the U.S. Constitution.

This trial is the first time state bans on same-sex marriage have been challenged under the federal constitution in federal court. (Other lawsuits have been filed—notably Smelt v. U.S.—but have been subsequently dropped.)

Olson and his team, which include well-known liberal attorney David Boies, put on a broad-scale attack, similar to one staged against Colorado Amendment 2 in 1993. Both cases tackled such matters as the history of discrimination against gays and whether sexual orientation is an immutable trait, but the Colorado Romer v. Evans case was about anti-discrimination laws in general. Perry v. Schwarzenegger, in San Francisco, is about marriage in particular.

Olson and his team, representing two same-sex couples, say Proposition 8 violates the federal constitutional guarantees of equal protection and due process. Cooper and his team say it reflects the will of the majority in a democratic system and that will is—not to express hostility to gays but—to “preserve the traditional definition of marriage.”

The 39 questions that Walker posed to the two sides—and to San Francisco’s openly gay Deputy City Attorney Therese Stewart, who will also give closing arguments—delve into both law and facts. They also touch on the federal Defense of Marriage Act—a federal law banning the recognition of same-sex couples which is under challenge by two active lawsuits in a federal court in Boston.

Judge Walker asked the attorneys challenging Proposition 8 to say whether they believe the court “could find Proposition 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act.”

Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, which is waging one of those challenges against DOMA, said he thinks Proposition 8 can be found unconstitutional without implicating DOMA.

“After all, we have marriage in five states and D.C. with DOMA in effect,” said Buseck, and the Massachusetts supreme court ruled, in 2003, that the Massachusetts constitution required equal marriage rights without needing to reach DOMA.

“Practically, people may have views on whether DOMA could stand given some bases on which Prop 8 might be struck,” said Buseck. “Then again, some narrow theory for striking Prop 8 may have no necessary effect on DOMA.”

In some cases, Walker’s questions appear to be hinting that the evidence submitted thus far for certain critical facts may not be sufficient. He asks, for instance, “What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women? Must gay men and lesbians be treated identically under the Equal Protection Clause?”

If a minority is treated poorly because of an immutable trait, such as skin color, the courts may scrutinize laws that treat them differently with a much tougher review—called strict scrutiny.

“We think that term ‘immutable’ has a meaning different in this analysis from just whether something is ‘changeable’ in the day-to-day sense,” said Lambda Legal Defense and Education Fund attorney Jenny Pizer. “Just because a person’s expression of their sexuality may be different at different stages of their life doesn’t mean their orientation is a matter of voluntary will at any given moment or, more to the point, that the government has any business telling the person to change as the price of equal treatment under law.”

“Think of it this way,” said Pizer, “people who are raised in an orthodox faith may be less likely to change their religious views or affiliations than people raised in faiths that accept greater diversity of belief. But do the orthodox get more constitutional protection for their exercise of religion than those whose beliefs are broader or more flexible in their expression? No. Equal protection means equal.”

“And while sexual orientation and religious faith have very different sources,” said Pizer, “both tend to be deeply rooted in personal identity and not something our government has a right to judge or require be changed as a condition of equal citizenship.”

Whatever questions prevail near the end of the case, they certainly foreshadow an active last day in court. Walker also issued instructions on Monday that closing arguments would begin at 10 a.m. Pacific time (1 p.m. Eastern) and, after a 12 to 1 p.m. lunch break, would resume from 1 p.m. until 3:45—a total of less than four hours but approximately the same as opening statements.

Walker is expected to be an active questioner during closing arguments, as he was during opening statements on January 11. On that day, Walker quickly interrupted plaintiffs’ lead attorney Ted Olson to ask, “Does the right to marriage mean you have the right to a marriage licenses from the state?” He interrupted Proposition 8 defender Charles Cooper’s opening statement to note that, if President Obama’s parents—an interracial couple—had lived in Virginia “their marriage would have been unlawful. Doesn’t that indicate there’s been quite a change in our understanding of what people are entitled to marry? Couldn’t an argument be made that there’s been a similar evolution with respect to same-sex marriage?”

Walker was equally active in challenging both sides throughout the three weeks of testimony in Perry v. Schwarzenegger in January.

The trial itself spanned almost three weeks, with 16 witnesses for the plaintiffs challenging California’s same-sex marriage ban, and 3 witnesses who support the initiative.

Judge Walker, an appointee of President George H.W. Bush, is chief of judges in the U.S. District Court for Northern California. His credentials coming into the case were predominantly conservative. In addition to being a Republican appointee, his reputation included having been one of the attorneys representing the U.S. Olympics Committee in 1985 when it prohibited the San Francisco Arts & Athletics Association from calling its event the Gay Olympics. Walker and his colleagues won the USOC’s case against Gay Games in 1986, at the U.S. Supreme Court.

But days after Walker adjourned the witness portion of the trial, the San Francisco Chronicle reported that it is an “open secret” in San Francisco that Walker “is himself gay.” The paper made its report without identifying any named sources and with only a “no comment” from Judge Walker himself.

An estimated 18,000 same-sex couples obtained marriage licenses in California between June and November 2008, after the California Supreme Court ruled that the state’s constitution required they be treated the same as straight couples.

GOP studies options against DADT; eyes Webb and Pryor

Republicans are reportedly scouring for filibuster votes against the Don’t Ask Don’t Tell repeal and are expected to focus their efforts on winning over Democrats Jim Webb of Virginia and Mark Pryor of Arkansas.

Jim Webb
Jim Webb

Republicans are reportedly scouring for filibuster votes against the Don’t Ask Don’t Tell repeal and are expected to focus their efforts on winning over Democrats Jim Webb of Virginia and Mark Pryor of Arkansas.

And The Hill newspaper reported Monday that, in the alternative, some Republicans may try to amend the repeal language to require that—not just Joint Chiefs of Staff Chairman Admiral Mike Mullen but also—the chiefs of all branches of service certify the readiness of troops in order for repeal to take effect.

Such an amendment, if approved, would likely create a big hurdle for repeal because several of the branch chiefs have made very public their opposition to repeal.

The DADT repeal language approved by the full House and by the Senate Armed Services Committee on May 27 calls for repeal to take effect once the President, the Defense Secretary, and the Chairman “certify” that three things have taken place. Those three things are: 1) that the three men have “considered the recommendations contained in the report and the report’s proposed plan of action,” 2) that the DOD has “prepared the necessary policies and regulations to exercise” repeal, and 3) that the implementation of those policies and regulations is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

Just one day earlier, the chiefs of the Air Force, Army, Marines, and Navy sent a letter to Senator John McCain (R-Ariz.), an opponent of repeal, expressing their carefully couched concerns about repeal. Those concerns primarily involved a desire to get significant input from servicemembers and their families and –as Army General George Casey put it— get a better understanding of “what the impacts on readiness and unit cohesion might be.”

But before the Senate Armed Services Committee in February, the generals more frankly opposed repeal. Casey said he has “serious concerns” about the impact on “readiness and military effectiveness.” Air Force General Norton Schwartz said, “This is not the time to perturb the force.”

One day after the historic votes on the House floor and in the Senate committee, Defense Secretary Robert Gates issued a message to servicemembers to let them know what the Congressional action on repealing DADT means, thus far, to them. His brief message, May 28, was clearly intended to emphasize the repeal is not yet a done deal.

“First, the legislative process is long and complex,” wrote Gates. “While it appears likely that Congress will eventually change the ‘Don’t Ask Don’t Tell’ law, we do not expect the legislation that would do this to be presented to the President for months—perhaps not until the end of the year.”

“Second,” said Gates, “the legislation involved is a deferred repeal. In other words, it would repeal ‘Don’t Ask Don’t Tell’ but only AFTER, I repeat AFTER, the ongoing Department of Defense high level review is completed and only after the President, the Chairman of the Joint Chiefs and I all can certify that we are ready to make this change without hurting unit cohesion, military readiness, military effectiveness and recruiting and retention.”

“Third, while this process plays out over time,” said Gates, “nothing will change in terms of our current policies and practices. Current law, policies and regulations remain in place and we are obligated to abide by them as before.”

And fourth, said Gates, “the Department of Defense review on this issue that I initiated earlier this year will continue as before and is more important than ever.”

Senator John McCain, the ranking minority member on the Senate Armed Services Committee, has not yet announced how he will oppose the repeal language during floor debate. Early reports suggested he or another Republican might try to filibuster the DOD bill in an effort to kill the repeal.

To amend the DOD bill to require all service chiefs certify repeal would require 51 votes. To stage a filibuster, Republicans would need 41 votes, and they have 41 Republicans in the Senate. But since moderate Republican Senator Susan Collins of Maine voted for repeal in Committee, she is not expected to support a filibuster against it. And The Weekly Standard, a conservative political website, predicts her moderate Republican colleague Olympia Snowe of Maine would also support repeal.

What Republicans are hoping for now, suggests The Weekly Standard, is that Democrat Jim Webb of Virginia—who opposed repeal in Committee—will join a filibuster attempt. Their next best bet for a 41st vote, it said, would be Senator Mark Pryor of Arkansas, who has said he would vote against repeal if a vote comes up before the Pentagon study is submitted.

Don’t Ask Don’t Tell is not the only controversy brewing in the Defense authorization bill. There’s also a fight over whether to fund an alternate engine for the Air Force’s existing F-35 fighter jets. The House version of the Defense authorization bill includes the funding; the Senate version that passed committee does not. Both the Pentagon and President Obama say the alternate engine is not needed, and President Obama has vowed to veto any DOD authorization bill that includes it.

And Senator McCain successfully amended the DOD authorization bill to require 6,000 National Guard troops be sent to the Arizona-Mexico border. The amendment passed on a 15 to 13 vote. That same language has been rejected by the Senate in earlier efforts and will likely face opposition during the floor consideration of DOD authorization.

Servicemembers Legal Defense Network predicts the full Senate could take up the Defense authorization bill, which contains the DADT repeal provision, as early as June 18.

The Senate takes a recess on July 4 and returns Monday, July 12. The Senate then takes recess from August 9 through September 10. Senator Carl Levin (D-Mich.), chairman of the Armed Services Committee, has said he thinks the DOD authorization bill will likely come up before the July 4 recess or the August 9 summer recess.

Presidential Pride Proclamations: A measure of presidents and progress

President Barack Obama has for the second time issued a proclamation in honor of Pride Month. Only one other president—Bill Clinton—has ever done so. A comparison of their proclamations suggests there’s been some progress in LGBT civil rights between the two administrations, but also highlights areas of little or no change.

Bill Clinton
Bill Clinton

President Barack Obama has for the second time issued a proclamation in honor of Pride Month. Only one other president—Bill Clinton—has ever done so. A comparison of their proclamations suggests there’s been some progress in LGBT civil rights between the two administrations, but also highlights areas of little or no change.

President Clinton issued the first “Gay and Lesbian Pride Month” proclamation in 1999, the third year of his second term, and another in 2000. President George W. Bush issued no Pride proclamations, making Obama the first president to issue a Pride proclamation in the first year of his presidency. Obama was also the first to include bisexual and transgender people and proclaim “LGBT Pride Month.”

Clinton’s first proclamation noted that gay and lesbian Americans were serving “openly and proudly” in the federal government. In his second, he specified that “more openly gay and lesbian individuals serve in senior posts throughout the Federal Government than during any other Administration.”

In 2009, Obama went further, stating that he was “the first President to appoint openly LGBT candidates to Senate-confirmed positions in the first 100 days of an Administration.”

Reaction from the LGBT community to Obama’s first proclamation was lukewarm, however. Other than the federal appointments, the only other accomplishment he mentioned was his support of a United Nations effort to decriminalize homosexuality around the world.

In other areas, Obama’s latest proclamation reflects modest changes since the Clinton era.

Clinton, writing after six years in office, noted in his first proclamation that his administration had banned sexual orientation-based discrimination in the federal civilian work force and in the granting of security clearances.

Obama’s 2010 proclamation speaks not of non-discrimination policies for federal employees but of the need for equal benefits. (Obama has added gender identity to the discrimination protections for federal employees, but did not mention that in either of his Pride proclamations.) In June 2009, Obama directed federal agencies to determine what benefits they could offer to same-sex partners of federal employees under existing law. In June 2010, after the agency information had been reviewed by the Office of Personnel Management and Department of Justice, he signed a memorandum ordering the extension of those benefits. They include the same benefits as for opposite-sex spouses except for health insurance and retirement benefits.

Obama’s 2010 proclamation also spoke of his memorandum requesting an end to discrimination against LGBT people in hospital visitation policies and of the Department of Housing and Urban Development’s (HUD’s) proposals to end discrimination on the basis of sexual orientation or gender identity in core housing programs. Neither the hospital nor HUD rules have gone into effect yet, however—they are being written and should soon be available for public comment.

Clinton had in both proclamations stressed the need to pass the Hate Crimes Prevention Act that, at the time, included sexual orientation but not gender identity. Obama, in his 2009 proclamation, reiterated the need for strengthened hate crimes laws, and by 2010, was able to say he had signed the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, inclusive of crimes based on gender identity or sexual orientation.

On some issues, however, the proclamations show minimal to nonexistent change.

Both of Clinton’s proclamations called for passage of the Employment Nondiscrimination Act (ENDA) that, at the time, included sexual orientation but not gender identity. Obama’s proclamations have repeated the call to end employment discrimination. An employment nondiscrimination bill inclusive of both sexual orientation and gender identity is pending in Congress, but its prospects are uncertain.

Clinton’s 1999 proclamation also devoted an entire paragraph to the need to protect students from discrimination and harassment, and it praised the guidance issued by the Department of Education to explain federal prohibitions against sexual harassment based on sexual orientation.

In 2009 and 2010, however, Obama is still reiterating the need to provide LGBT youth with safe environment in which to learn, but he mentioned it as one item in a list of other to-dos and included no relevant accomplishments in that area.

A few issues in Obama’s proclamations were nowhere to be found in Clinton’s.

Clinton, who in 1996 had signed the Defense of Marriage Act (DOMA), did not mention marriage equality or federal relationship recognition. Obama, however, spoke in his first proclamation of the need to enact civil unions and in his second of the need to repeal DOMA.

Clinton’s proclamations also overlooked the military’s ban on gay and lesbian servicemembers, which he had promised to repeal, only to settle on the compromise later known as “Don’t Ask, Don’t Tell.” Obama has, in both his proclamations, stated his support for repealing the ban. His 2010 proclamation came the day after the U.S. House and the Senate Armed Services Committee voted to overturn the ban, pending the outcome of a Department of Defense implementation study.

Clinton’s proclamations did not speak of HIV/AIDS, even though he had made proclamations in honor of World AIDS Day since his first year in office and had increased funding for AIDS research, among other measures to combat the disease.

Obama, in his 2009 Pride proclamation, did mention the ongoing need to fight HIV/AIDS. In 2010, he touted the lifting of the immigration ban on persons with HIV/AIDS and his renewal of the Ryan White CARE Act, the largest federally funded AIDS program.

Clinton also made no mention of adoption rights for LGBT people, whereas Obama in both proclamations said we must work to ensure such rights. In 2010, he made a point of recognizing LGBT mothers and fathers.

In Clinton’s 1999 proclamation, he recalled the beginnings of the gay and lesbian civil rights movement at the Stonewall Inn in New York, noting that it had just been added to the National Register of Historic Places. Stonewall was again mentioned in his 2000 proclamation and in Obama’s 2009 one, on the 40th anniversary of the event. In 2010, however, Obama did not mention Stonewall, but placed Pride Month in the context of the “great, unfinished story” of equality for all Americans.

DADT repeal clears two major Congressional hurdles

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

Carl Levin
Carl Levin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Maura Healey
Maura Healey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“But not for federal purposes?” asked Tauro.

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

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

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

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

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

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

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

Lesbian U.S. Attorney Nominee Approved

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

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

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

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

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

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

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

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

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

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

Patrick Murphy
Patrick Murphy

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

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

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

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

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

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

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

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

Compromise DADT repeal poised for votes now in Congress

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

Patrick Murphy
Patrick Murphy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But some activists seem uneasy with the compromise.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vets keep pressure on for DADT repeal

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

But that is despite some disappointments.

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

But that is despite some disappointments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-Bullying Measures Advance Against Obstacles

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

Photo credit: Wikimedia Commons
Photo credit: Wikimedia Commons

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pelosi: DADT and ENDA votes this year

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

Nancy Pelosi
Nancy Pelosi

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mara Keisling
Mara Keisling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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