Box Turtle Bulletin

Presidential Candidates React

Jim Burroway

February 7th, 2012

Mitt Romney does it old school, via a press relase:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

Newt Gingrich, via Twitter:

“Court of Appeals overturning CA’s Prop 8 another example of an out of control judiciary. Let’s end judicial supremacy”

Rick Santorum, also via Twitter:

“7M Californians had their rights stripped away today by activist 9th Circuit judges. As president I will work to protect marriage.”

Ron Paul:

“…”

Press Secretary Jay Carney on behalf of President Obama:

“I’m not going to comment on litigation particularly as here where we are not party to it, but the president’s positions on these issues writ large are well known, and he’s long opposed divisive and discriminatory efforts to deny right and benefits to same-sex couples.”

On the flip side, former GOP Presidentical candidate, current Libertarian Party Presidentical candidate and former New Mexico Gov. Gary Johnson tweeted:

“Prop 8 – Sometimes a Court gets it right”

US Pushes Hard on LGBT Rights Around the World

Jim Burroway

December 6th, 2011

The Obama administration has issued a flurry of documents and Secretary of State Hillary Clinton gave a groundbreaking speech on the need for protecting the human rights of LGBT people around the world. It began this morning with the White House memorandum directing American international agencies to take action in countries where LGBT abuses are taking place. That was followed by fact sheets from the White House and the State Department outlining the new policies as well as past accomplishments. Of particular interest is the State Department’s description of its engagement in Uganda over concerns about the proposed Anti-Homosexuality Bill:

Alongside Ugandan civil society’s strong and sustained outreach to parliamentarians and the Uganda Human Rights Commission, and advocacy of other governments, U.S. Government advocacy against Uganda’s proposed Anti-Homosexuality Bill established a precedent for the United States, the international donor community and civil society to collaborate to counter efforts to criminalize same-sex conduct. [Emphasis mine]

While activities in Uganda are mentioned, Africa was not alone in receiving the State Department’s attention over the past few years. Also mentioned are Jamaica, Slovakia, Indonesia, Guinea, Serbia, and India. Meanwhile, Secretary Clinton gave what has been described as a groundbreaking speech in Geneva in advance of Human Rights Day this Saturday. I wasn’t able to see the speech and hope to have the transcript as soon as possible. (Update: It’s here, and it’s a doozy.)

It remains to be seen how the actions today will be reported in the popular media and what the response will be in countries which stand to be affected by today’s announcements. But past events does give us a clue as to how today’s developments are likely to be received in world capitals where LGBT persecution is either official policy or the social norm. Russia had earlier denounced American diplomatic protests over a proposed bill in St. Petersburg which would prohibit LGBT advocacy in public, and Deputy Prime Minister Dmitry Kozak followed that with a suggestion that the St. Petersburg proposal could be made a federal law. In Africa, following comments from British Prime Minister David Cameron warning that countries which prosecute LGBT people could see their foreign aid cut (a warning that was later modified to say that the aid would be redirected to NGO’s instead), African leaders, including those who oppose LGBT oppression, warned that the statement could backfire on efforts to head off legislation which would severely increase penalties against LGBT people. African LGBT advocates also warn that if changes in foreign funding force cutbacks in governmental services, the local LGBT communities would feel the brunt of the blame, making the work of LGBT advocacy much more difficult in countries where the prevailing belief is that homosexuality is a Western import.

None of that is to say that these pronouncements from the US and IK aren’t unwarranted or improper. But every action has an equal and opposite reaction, and as they say in Africa, when elephants fight, the grass suffers. Since Cameron’s announcement in October, there has been a measurable uptick on African newspaper articles mentioning homosexuality popping up through November and December in my Google Alerts for the continent, and those articles are rarely positive. The Ugandan Parliament revived the Anti-Homosexuality Bill by the end of October, and the Nigerian Senate greatly increased the penalties in a bill which makes same-sex unions a felony in November.

Now to be clear, neither action was a response to Britain’s announcement; both events almost certainly have occurred anyway. But if anyone had been inclined to speak out against those two bills before, the current politics now makes that all but impossible. No African politician has ever lost influence by standing up to “meddling” by foreign and (especially) colonial powers. And no politician anywhere in the world — east, west, north or south — has survived the taint of being accused of colluding with foreign governments, no  matter how manifestly untrue, unjust, or an irrelevant distraction those accusations may be.

In the short term, these announcements are likely to exacerbate the situation. That is just a simple fact of life, but pointing that out isn’t to say that this is not a good change in direction. It is merely to say that we will need to be forewarned and prepared for the inevitable reaction which will come of it. Fasten your seat belts.

Obama Orders Government Action on International LGBT Abuses

Jim Burroway

December 6th, 2011

President Barack Obama issued a memorandum today directing “all agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons.” The memorandum requires agencies to work on fighting criminalization of LGBT people and sets up protections for LGBT people seeking asylum. The memo also directs agencies which engage in international efforts to report back within 180 days and every year afterwards a status report on their progress toward these efforts.

The memo does not specify specific actions that individual agencies are to take in pursuing the goals, nor does it specify specific sanction, remedies, or diplomatic initiatives to be undertaken to protect the human rights of LGBT people internationally. Instead, it directs the State Department to set up a standing group “with appropriate interagency representation, to help ensure the Federal Government’s swift and meaningful response to serious incidents that threaten the human rights of LGBT persons abroad.” It appears that this standing group is intended to direct a coordinated response among several U.S. government to situations as they arise.

Here is the complete memo:

THE WHITE HOUSE
Office of the Press Secretary

For Immediate Release

December 6, 2011

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: International Initiatives to Advance the Human Rights of Lesbian, Gay, Bisexual, and Transgender Persons

The struggle to end discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons is a global challenge, and one that is central to the United States commitment to promoting human rights. I am deeply concerned by the violence and discrimination targeting LGBT persons around the world — whether it is passing laws that criminalize LGBT status, beating citizens simply for joining peaceful LGBT pride celebrations, or killing men, women, and children for their perceived sexual orientation. That is why I declared before heads of state gathered at the United Nations, “no country should deny people their rights because of who they love, which is why we must stand up for the rights of gays and lesbians everywhere.” Under my Administration, agencies engaged abroad have already begun taking action to promote the fundamental human rights of LGBT persons everywhere. Our deep commitment to advancing the human rights of all people is strengthened when we as the United States bring our tools to bear to vigorously advance this goal.

By this memorandum I am directing all agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons. Specifically, I direct the following actions, consistent with applicable law:

Section 1. Combating Criminalization of LGBT Status or Conduct Abroad. Agencies engaged abroad are directed to strengthen existing efforts to effectively combat the criminalization by foreign governments of LGBT status or conduct and to expand efforts to combat discrimination, homophobia, and intolerance on the basis of LGBT status or conduct.

Sec. 2. Protecting Vulnerable LGBT Refugees and Asylum Seekers. Those LGBT persons who seek refuge from violence and persecution face daunting challenges. In order to improve protection for LGBT refugees and asylum seekers at all stages of displacement, the Departments of State and Homeland Security shall enhance their ongoing efforts to ensure that LGBT refugees and asylum seekers have equal access to protection and assistance, particularly in countries of first asylum. In addition, the Departments of State, Justice, and Homeland Security shall ensure appropriate training is in place so that relevant Federal Government personnel and key partners can effectively address the protection of LGBT refugees and asylum seekers, including by providing to them adequate assistance and ensuring that the Federal Government has the ability to identify and expedite resettlement of highly vulnerable persons with urgent protection needs.

Sec. 3. Foreign Assistance to Protect Human Rights and Advance Nondiscrimination. Agencies involved with foreign aid, assistance, and development shall enhance their ongoing efforts to ensure regular Federal Government engagement with governments, citizens, civil society, and the private sector in order to build respect for the human rights of LGBT persons.

Sec. 4. Swift and Meaningful U.S. Responses to Human Rights Abuses of LGBT Persons Abroad.The Department of State shall lead a standing group, with appropriate interagency representation, to help ensure the Federal Government’s swift and meaningful response to serious incidents that threaten the human rights of LGBT persons abroad.

Sec. 5. Engaging International Organizations in the Fight Against LGBT Discrimination. Multilateral fora and international organizations are key vehicles to promote respect for the human rights of LGBT persons and to bring global attention to LGBT issues. Building on the State Department’s leadership in this area, agencies engaged abroad should strengthen the work they have begun and initiate additional efforts in these multilateral fora and organizations to: counter discrimination on the basis of LGBT status; broaden the number of countries willing to support and defend LGBT issues in the multilateral arena; strengthen the role of civil society advocates on behalf of LGBT issues within and through multilateral fora; and strengthen the policies and programming of multilateral institutions on LGBT issues.

Sec. 6. Reporting on Progress. All agencies engaged abroad shall prepare a report within 180 days of the date of this memorandum, and annually thereafter, on their progress toward advancing these initiatives. All such agencies shall submit their reports to the Department of State, which will compile a report on the Federal Government’s progress in advancing these initiatives for transmittal to the President.

Sec. 7. Definitions. (a) For the purposes of this memorandum, agencies engaged abroad include the Departments of State, the Treasury, Defense, Justice, Agriculture, Commerce, Health and Human Services, and Homeland Security, the United States Agency for International Development (USAID), the Millennium Challenge Corporation, the Export-Import Bank, the United States Trade Representative, and such other agencies as the President may designate.

(b) For the purposes of this memorandum, agencies involved with foreign aid, assistance, and development include the Departments of State, the Treasury, Defense, Justice, Health and Human Services, and Homeland Security, the USAID, the Millennium Challenge Corporation, the Export-Import Bank, the United States Trade Representative, and such other agencies as the President may designate.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

# #

Obama Blasts GOP For Failure To “Stand Up For the Men and Women Who Wear The Uniform”

Jim Burroway

October 2nd, 2011

In remarks before a gathering of the Human Rights Campaign, President Barack Obama blasted Republicans for standing silently on stage while audience members booed a gay American soldier during a GOP debate last week. Six candidates — Former Massachusetts Gov. Mitt Romney, Texas Gov. Rick Perry, Texas Rep. Ron Paul, pizza magnate Herman Cain, Minnesota Rep. Michele Bachmann, and former House Speaker Newt Gingrich — have maintained their silence for more than a week. Obama called them out:

We don’t believe in a small America. We don’t believe in the kind of smallness that says its okay for a stage full of political leaders, one of whom could end up being the President of the United States, being silent when an American soldier is booed. We don’t believe in that. We don’t believe in standing silent when that happens. We don’t believe in them being silent since.

You want to be commander in chief? You can start by standing up for the men and women who wear the uniform of the United States, even when it’s not politically convenient.

We don’t believe in a small America. We believe in a big American, a tolerant America, a just America, an equal America that values the service of every patriot. We believe in an America where we’re all in it together and we see the good in one another. And we live up to a creed that is as old as our founding, “E Pluribus Unum” — out of many, one. And that includes everybody. That’s what we believe. That’s what we’re going to be fighting for. I am confident that’s what the American people believe in. I’m confident because of the changes we’ve achieved these two and a half years, the progress that some folks said was impossible.

Obama Calls On UN To Protect Gay Rights

Jim Burroway

September 21st, 2011

President Barack Obama spoke at the United Nations General Assembly today, where he called on member states to protect the human rights of gays and lesbians:

And to make sure our societies reach their potential, we must allow our citizens to reach theirs. No country can afford the corruption that plagues the world like a cancer. Together, we must harness the power of open societies and open economies. That’s why we’ve partnered with countries from across the globe to launch a new partnership on open government that helps ensure accountability and helps to empower citizens. No country should deny people their rights to freedom of speech and freedom of religion, but also no country should deny people their rights because of who they love, which is why we must stand up for the rights of gays and lesbians everywhere.

According to the White House, this is the first time that a sitting U.S. President affirmed the rights of gays and lesbians before the U.N. General Assembly.

DADT Certification Is Done!

Jim Burroway

July 22nd, 2011

The military ban on gay servicemembers serving openly known as “Don’t Ask, Don’t Tell” will officially pass into history on September 20, 2011. President Barack Obama signed the certification stating that the U.S. military is now fully prepared to end the policy with no harm to military readiness. The certification, which is required by the repeal law passed last December, starts a sixty day clock to final repeal.

The White House released the following statement from President Obama:

Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality.  In accordance with the legislation that I signed into law last December, I have certified and notified Congress that the requirements for repeal have been met.  ‘Don’t Ask, Don’t Tell’ will end, once and for all, in 60 days—on September 20, 2011.

As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness.  Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal.  As of September 20th, service members will no longer be forced to hide who they are in order to serve our country. Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.

I want to commend our civilian and military leadership for moving forward in the careful and deliberate manner that this change requires, especially with our nation at war.  I want to thank all our men and women in uniform, including those who are gay or lesbian, for their professionalism and patriotism during this transition.  Every American can be proud that our extraordinary troops and their families, like earlier generations that have adapted to other changes, will only grow stronger and remain the best fighting force in the world and a reflection of the values of justice and equality that the define us as Americans.

Secretary of Defense Leon Panetta and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen signed the certification letter yesterday and presented it to the President this afternoon.

According to Chris Geidner at Metro Weekly:

In a news conference at the Pentagon, Maj. Gen. Steven A. Hummer said that the military had completed ”the necessary policies and regulations to implement repeal,” praised the work of the Repeal Implementation Team, and said, ”This thoughtful and steady approach…has laid the groundwork for a smooth and orderly transition.”

…Hummer said the military expects all training of active duty servicemembers and reserves will be completed by Aug. 15.

Hummer said that the repeal implementation Team has conducted a thorough review of regulations and policies, made the necessary revisions, and stated that those changes will be effective upon the date of repeal. Some of the main policies addressed relate to separations of servicemembers under DADT. Such servicemembers, when discharged fully under DADT, will be able to re-apply after repeal, said Hummer.

There are still some issues related to DADT’s repeal which are yet to be addressed:

”Perhaps the largest piece of this is benefits,” said Hummer.

Although Hummer said that certain benefits in which servicemembers can select a beneficiary of their own choosing will be open to gay, lesbian and bisexual servicemembers who wish to name a same-sex partner, he noted that the Defense of Marriage Act (DOMA) and ”the existing definition of ‘dependent’ in some laws” will prohibit extending benefits such as health care and housing allowances to the same-sex partners of servicemembers.

Sen. Susan Collins (R-ME), whose refusal to let DADT repeal die when all hope appeared lost, praised today’s development:

America is now one giant step closer to joining at least 28 of our closest allies in welcoming the service of any qualified individual who is willing and capable of serving our country.  I am delighted to have helped lead the effort to begin repeal of this law because it is the right thing to do for our military and for our country.

Sen. Collins was the only Republican on the Senate Armed Services Committee to vote to include DADT’s repeal in the Defense Authorization bill.  In December, she was the only Republican in the Senate to vote to proceed to the Defense Authorization bill which included repeal language. When that vot failed, Sens. Collins and Joe Lieberman (I-CT) then introduced a standalone bill which passed the Senate on December 18, 2010 by a vote of 65-31.

Sen. Lieberman also praised DADT’s imminent demise:

“Our strongest in the world military is even stronger today with the certification that its readiness and effectiveness will not be diminished by the open service of gay and lesbian servicemembers. I thank our military leaders for their efforts over the past several months to implement this policy. Justice has been served, and we should all be grateful that patriots stand guard every day around the world protecting our precious freedoms.”

Rep. Barney Frank (D-MA) also reacted to the news:

Given Leon Panetta’s lifelong record of opposition to unfair discrimination, I knew when the President appointed him to be the Secretary of Defense that he would act promptly to implement last December’s legislation to end “Don’t Ask, Don’t Tell.”

I have a prediction: just as we have seen in those states where same-sex marriage has occurred with none of the negative consequences predicted, it will soon be clear that there was never any basis for this discriminatory policy in the first place other than prejudice, and the gay, lesbian, bisexual and transgender servicemembers will soon demonstrate that there never was a good reason to keep them from serving our country.

DADT receives death certificate

Timothy Kincaid

July 22nd, 2011

In accordance with the terms set out in the legislation terminating the Military’s Don’t Ask Don’t Tell policy, the President of the United States, the Secretary of the Defense, and the Chairman of the Joint Chiefs of Staff have now certified that the Department of Defense has now prepared the necessary policies and regulations and that such policies and regulations are consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

It’s official. While the change will not go into effect for another 60 days, the policy restricting the open service of gays and lesbians in the military has been certified dead.

Many people and organizations played an role in this change. And many deserve credit. And you will receive emails from several today claiming that credit and asking you for money.

But one organization which has, in my opinion, contributed far beyond most will probably get scant recognition elsewhere in our community, so I’ll give them the opportunity to brag a bit.

Today, on July 22, 2011, the President, Secretary of Defense, and the Chairman of the Joint Chiefs took the next step, certifying that the military is ready to end the ban on open service. It is a proud day to be an American, and a proud day to be a Log Cabin Republican.

Log Cabin Republicans fought this archaic policy on many fronts, from working with the Pentagon’s Comprehensive Working Group which showed servicemembers were unopposed to the change, to securing the needed Republican votes in Congress for repeal, to bringing the federal lawsuit Log Cabin Republicans v. United States which declared ‘Don’t Ask, Don’t Tell’ unconstitutional. It has been a long campaign, and the fight is not yet over, but victory is in sight at last.

Thanks guys. Considering the vote count and the pressure that the lawsuit applied, I honestly don’t think we could have accomplished this at this time without you.

Obama Issues Pride Month Proclamation

Jim Burroway

June 1st, 2011

President Barack Obama issued a proclamation last night declaring the month of June the Lesbian, Gay, Bisexual and Transgender Pride Month:

The story of America’s Lesbian, Gay, Bisexual, and Transgender (LGBT) community is the story of our fathers and sons, our mothers and daughters, and our friends and neighbors who continue the task of making our country a more perfect Union. It is a story about the struggle to realize the great American promise that all people can live with dignity and fairness under the law. Each June, we commemorate the courageous individuals who have fought to achieve this promise for LGBT Americans, and we rededicate ourselves to the pursuit of equal rights for all, regardless of sexual orientation or gender identity.

…Every generation of Americans has brought our Nation closer to fulfilling its promise of equality. While progress has taken time, our achievements in advancing the rights of LGBT Americans remind us that history is on our side, and that the American people will never stop striving toward liberty and justice for all.

President Obama’s declaration also notes that this June marks the 30th anniversary of the known AIDS epidemic (we now know that AIDS had already been killing people for many decades before it was reported by the CDC in 1981), and urges a recommitment to AIDS awareness. “This landmark anniversary is an opportunity for the LGBT community and allies to recommit to raising awareness about HIV/AIDS and continuing the fight against this deadly pandemic.”

Obamas Speak Out Against Bullying

Jim Burroway

March 9th, 2011

President Barack Obama and First Lady Michelle will host an anti-bullying conference at the Whte House tomorrow which will be streamed live at WhiteHouse.gov. The conference includes teachers, students, and community leaders, and will include online live chats. In preparation for the conference, the President and First Lady recorded this Facebook message.

You can submit questions here, and you can RSVP for a “Facebook live” chat here. There’s also more information at StopBullying.gov.

Last October, President Obama released a video for the “It Gets Better” campaign, aimed at stemming the epidemic of youth suicides brought on by bullying.

DOMA: recap, summary, and analysis

Timothy Kincaid

February 24th, 2011

It has been a day since Attorney General Holder announced the Obama Administration’s position on the constitutionality of Section 3 of the 1996 Defense of Marriage Act, and we are beginning to get a sense of how this will impact individuals in various states. Some of this is consistent with early assumptions and thinking, some is different from my earlier thoughts, and some is as yet unclear.

DOMA

Before we discuss the impact, let’s revisit the law. DOMA had three sections and, to better understand the issue, here is the law as it is on the books:

Section 1 named the act: “This Act may be cited as the `Defense of Marriage Act’.”

Section 2 revised chapter 115 of the United States Code, which deals in part with the full faith and credit aspects of states’ interaction, and gave permission to the states to ignore any marriage laws of other states that relate to same-sex couples:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3 revised Title 1, Chapter 1 of the United States Code to define “marriage” and “spouse.” Prior to DOMA, these terms were defined by the states and not by the federal government. It is significant and telling that DOMA’s third section was placed in such a prominent position in the US Code; it says that for all of our social contract, our form of government, our protections and requirements and obligations and rights, before we consider anything else, we shall exclude same-sex couples from consideration:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The challenges and the Administration’s postion:

The challenges to DOMA to date are as follows:

Commonwealth of Massachusetts v. United States Department of Health and Human Services (1:09-cv-11156-JLT) – Massachusetts has defined its marriage laws according to its community standards as, since the inception of the nation, states have been allowed to do. However, upon Massachusetts’ recognition of marriage between same-sex couples the federal government ignored the state’s issuance, recording and recognition, instead choosing to implement Congress’ definition of marriage. Massachusetts Attorney General Martha Coakley sued the Department of Health and Human Services to defend the state’s rights and the case was heard by Federal First Circuit Court Judge Joseph Tauro.

Gill v. the Office of Personnel Management (1:09-cv-10309-JLT) – Nancy Gill and Marcelle Letourneau, along with other same-sex couples married under the laws of the commonwealth of Massachusetts, argued that Section 3 of DOMA violated the equal protections provisions of the US Constitution. They were represented by Gay & Lesbian Advocates & Defenders (GLAD) and the case was consolidated with others (see above) and argued before Judge Joseph Tauro in conjuction with Commonwealth.

On July 8, 2010, Tauro found that Congress had exceeded its authority by seeking to assume powers that were reserved to the states (Commonwealth). Separately, he found that there was not even a rational basis for unequal treatments between legally married heterosexual couples and legally married homosexual couples (Gill).

My observations at that time were

These cases do not discuss whether states may deny marriage equality, only whether the federal government may do so. If it is constitutionally permissible to discriminate against gay people in matters of marriage, only states may enact that discrimination.

Taken together, it seems clear that Tauro finds that a distinction based on marriage is permissible. But one that is based on sexual orientation is not. This would seem to suggest that because states can determine marriage laws (Commonwealth), it can either allow or refuse same-sex marriage (until otherwise restricted). So those legally married same-sex couples in Massachusetts, Iowa, Connecticut, Vermont, New Hampshire, Washington DC, New York and Maryland and some 18,000 couples in California would be married in the eyes of the federal government while those in civil unions or domestic partnerships would not.

The Justice Department appealed Tauro’s decision on October 12, 2010 and filed a brief on January 14, 2011 defending DOMA.

Dragovich v US Dept. of Treasury (4:10-cv-01564-CW) – The Legal Aid Society sued on behalf of California public employees who were not allowed to include their spouses in CalPERS’ long-term care plan due to federal restrictions on the state program’s recognition of marriages and spouses.

On January 18, 2011, Ninth Circuit Federal Judge Claudia Wilkin refused the government’s motion to dismiss in a response that strongly indicated that Wilkin would find that Section 3 of DOMA violated both the due process and equal protection provisions of the US Constitution.

Pedersen et al. v. Office of Personnel Management (3:10-cv-01750-VLB) – Following on their success in Gill, GLAD filed in the Second Circuit Court on behalf of Joanne Pedersen & Ann Meitzen, a legally married couple under Connecticut law along with couples married in Vermont and New Hampshire.

Pedersen was filed on November 9, 2010, and the first round of filings are due on March 31. At that time the Department of Justice can file for dismissal and GLAD can file for summary judgment.

Windsor v. United States (1:10-cv-08435-BSJ)- This case, filed by the ACLU, has a unique fact pattern. Edie Windsor and Thea Spyer married in Canada in 2007 and their marriage was recognized by their home state of New York (which does not currently grant marriage licenses to same-sex couples). When Spyer died, her estate was taxed with no consideration to their marriage status.

Windsor was filed on November 9, 2010, concurrent with Pederson, and the date for the defense to file a motion to dismiss is March 31, 2011. (Holder’s letter places this date at March 11, but the docket states March 31. In either case, it is quite soon)

To recap, Commonweath deals with the rights of states to define marriage. Gill, Dragovich, Pedersen, and Windsor all deal with the rights of individuals to due process and equal access. None of these cases challenge Section 2 of DOMA or question whether one state must recognize same-sex marriages conducted in another.

What the Administration announced:

In his letter to Speaker of the House Boehner, the attorney general laid out a legal determination and a consequential plan of action. The legal determination was two-fold.

First, Holder recognized that in those court districts in which the appropriate level of scrutiny for anti-gay discrimination had no precedent, the defendants would be required to argue for such a level. And the Department of Justice found itself unable to make a cogent argument that only rational basis be applied.

The Supreme Court has established a three part test to determine whether rational basis or a stricter level of scrutiny be considered: a history of discrimination, immutable characteristics comprising a discrete group, and political powerless minority subject to majority whim. On all three of these, the DOJ found itself incapable of arguing for rational basis and thus found that only strict scrutiny could be applied to sexual-orientation based discrimination.

Secondly, Holder acknowledged that his office was incapable of presenting any argument in favor of anti-gay discrimination that could stand up to strict scrutiny. While theoretically rational basis arguments can be pie in the sky (though they must at least be rational), strict scrutiny required tangible real and compelling reasons for the discrimination that were tied to the legislature’s actual reasoning and there just wasn’t anything to present.

It is important to understand that the Administration did not say that it was refusing on unwilling to defend the law but rather that it was incapable of defending the law. There simply were no arguments to present to the court.

Those who claim that the Administration is “choosing which laws to defend” are either confused or dishonest. Those who say that this will “nationalize” same-sex marriage and impose it on unwilling states are either confused or dishonest. Those who go on TV and spout completely false information about this decision are either irresponsible or dishonest. I’m inclined to suspect ‘dishonest.’

In consequence, the DOJ announced that it would not present arguments to the judges in Pedersen and Windsor that these cases should be tried under rational basis. Should the judges independently determine that no stricter scrutiny than rational basis would be considered, the DOJ was capable of defending DOMA on rational basis pie in the sky notions.

But unless the judges independently determined that rational basis was the standard, the Department of Justice would not attempt to justify DOMA under stricter scrutiny because they had no arguments to present.

What does this mean?

Immediately, nothing. The law remains on the books, the Administration will continue to administer the law, and gay couples have no more federal recognition than two random roommates living in a dorm.

However, it is a very short time before this could all change. The House of Representatives has a small window in which to decide whether to defend DOMA in court. Should they fail to do so, then in March the courts will be presented with a motion for summary judgment (a request for a trial-less determination) which argues that DOMA Section 3 is unconstitutional, and in response the DOJ will say, “I got nothing.”

Presented with only one side, it is extremely probable that the judges will find for the plaintiffs and order the federal government to recognize their marriages. This could be limited to specific circumstances for individual plaintiffs or applied broadly against the United States and applicable to all same-sex marriages. However, without appeal to the US Supreme Court, then these decisions will only apply to same-sex married couples in Second Circuit states (Connecticut, Vermont, New Hampshire, and New York).

Should the House intervene, a not-unlikely possibility, then the House will be allowed to present arguments that only rational basis be applied and that DOMA’s discrimination achieves a governmental function. However, they will do so with the additional burden or explaining why not only the plaintiffs but the Department of Justice are incorrect in their interpretation of the Constitution.

Meanwhile the Massachusetts and California cases continue. It is difficult to know exactly how the Administration’s decision will play into these cases. Having announced that you believe DOMA Section 3 to violate the US Constitution, courts are less likely to believe the sincerity of arguments otherwise.

While GLAD has no certainty about how Gill is impacted, Massachusetts Attorney General Martha Coakley (at least publicly) believes that the DOJ will drop their appeal of Commonwealth (Globe).

“We assume they will withdraw their briefs. Unless we hear otherwise, we believe the Department of Justice’s intention is not to defend any of these cases,” said Coakley, whose suit contended that the federal law unfairly created two classes of married people.

Should the government withdraw its appeal in Gill and Commonwealth, then Judge Tauro will order the United States to recognize Massachusetts’ same-sex marriages. It is unclear whether the House would have any standing to appeal this DOMA decision.

But unless the federal government opts not to appeal to the Supreme Court and the House opts not to intervene, this issue will eventually end up before the Supreme Court (as it could through Dragovich or Perry). And there are a few ways the court could go.

Should they decide to hear Commonweath first, that could make all of the other cases moot. They could determine that states have, as they always have had, the right to define marriage. Doing so could avoid or delay any requirement to determine whether in such definition a state can distinguish between same-sex and opposite-sex marriages as Commonwealth does not address that issue.

Should they decide that the federal government has a newly found right to establish family law, then they would have to deal with the various other cases which deal with discrimination against individuals. This could be an interesting direction.

Although these cases are federal cases and speak only to what the federal government can do, should the SCOTUS find that federal anti-gay marriage law violates the constitutional rights of individuals, it is difficult to see how that would not also be true of the states. While we have assumed that Ted Olson and David Boies would be the ones to argue the unconstitutionality of banning same-sex marriage, it is possible that due to timing (delays or expedition) it could be GLAD or the ACLU.

President Obama on David Kato’s Killing: “LGBT Rights Are Not Special Rights; They Are Human Rights.”

Jim Burroway

January 27th, 2011

From the White House:

THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release January 27, 2011

Statement by the President on the Killing of David Kato
I am deeply saddened to learn of the murder of David Kato. In Uganda, David showed tremendous courage in speaking out against hate. He was a powerful advocate for fairness and freedom. The United States mourns his murder, and we recommit ourselves to David’s work.

At home and around the world, LGBT persons continue to be subjected to unconscionable bullying, discrimination, and hate. In the weeks preceding David Kato’s murder in Uganda, five members of the LGBT community in Honduras were also murdered. It is essential that the Governments of Uganda and Honduras investigate these killings and hold the perpetrators accountable.

LGBT rights are not special rights; they are human rights. My Administration will continue to strongly support human rights and assistance work on behalf of LGBT persons abroad. We do this because we recognize the threat faced by leaders like David Kato, and we share their commitment to advancing freedom, fairness, and equality for all.

Memorial And Rally? Very Well: A Memorial and Rally

Jim Burroway

January 13th, 2011

The memorial was nothing short of magnificent, and it was exactly what this city needed. It was, at turns, somber and celebratory. Tucsonans have been in a severely depressed funk, dazed and stunned that something like this could happen here.

I hear some small-minded grumbling that the event was somehow too “raucous” or a “rally.” Well you know what? A rally is just what we needed. Those who sit in judgment in their comfortable offices and studios on the coasts tut-tutting last night’s memorial haven’t had to drive by the still-closed Safeway every morning and every evening to and from work. They haven’t been within a thousand miles of the nightly vigils at UMC and at Gabrielle Giffords’s congressional office. They haven’t turned on television to see their own neighbors grieving in wall-to-wall coverage. They haven’t picked up their local newspapers to read the dozens of stories about the tragedy and then turn the page, thinking perhaps that they were finished with those heartbreaking stories, only to be confronted by the same familiar names and photos in the obituaries. They haven’t made plans to attend some of the funerals which begin today. They won’t pull over to the side of the road as the funeral processions pass on the way to the cemetery. They haven’t seen their beloved town turned into something unrecognizable. When they have experienced all of this, maybe then they can legitimately criticize our desire last night to tentatively shake off our sack cloths and wash away the ashes, if only for a moment. But not until then.

Tucsonans have undergone a stunned mourning for five solid days now. It’s about time we also celebrate, and yes, cheer, our community’s coming together and move toward the future. It is time to rally our wounded community, and to resolve to build a better, kinder, and more civilized world.

When tragedies like this strike, we expect the President to come grieve among the people. And yet, Tucsonans appeared genuinely surprised and touched when the President announced he was coming here. I had wanted to take a half-day off work and get in line for the memorial, but when I got up yesterday morning I learned that a long line had already formed the night before. By noon it was already clear that there was no way anyone who wasn’t already there would get into the McKale Center. So my partner and I saw it on television at home. I don’t know how the major networks carried the event. We chose to watch it on local TV, which simply carried the live feed and ditched the voiceovers, pundits and real-time crawls.

I thought Arizona Governor Jan Brewer’s address was splendid. She was kind, wonderfully gracious, and very generous. The blessing at the beginning was touching, given by someone whose ancestry in Tchuk Shoon predates the arrival of “Americans” and reminds us of the timelessness of this valley that has drawn so many to the Old Pueblo, as we like to call our city. We celebrated our heros who ran toward the gunfire, and we learned for the first time that Gabby Giffords had opened her eyes. And with that, it is my hope that President Barack Obama’s exceptional speech opens all of our eyes, so that we, too, can build a society worthy of Christina Taylor-Green’s spirit.

Click here to read a transcript of President Obama’s speech

AZ Lawmakers Move to Limit Westboro Baptist Protests at Funerals

Jim Burroway

January 11th, 2011

Soon after Saturday’s heinous massacre of six Tucsonans and the injuring of fourteen others including Rep. Gabrielle Giffords, Westboro Baptist’s Fred Phelps announced via video that the shooter, Jared Loughner, was appointed by Phelps’s god to do the evil deed and that the Westboro clan would protest the funerals. Arizona state Sen. Kirsten Sinema (D-Phoenix) swung into action:

Arizona Gov. Jan Brewer has signed into law emergency legislation to head off picketing by a Topeka, Kan., church near the funeral service for a 9-year-old girl who was killed during Saturday’s shooting in Tucson. Unanimous votes by the House and Senate on Tuesday sent the bill to Brewer. It took effect immediately with her signature Tuesday night. The new law prohibits protests within 300 feet of a funeral or burial service.

…Arizona State Representative Kyrsten Sinema said when she heard of the plans, she got downright angry and decided to take action.  Sinema sponsored Senate Bill 1101 and got some help from fellow legislators.  “We patterned legislation after Ohio’s law which is constitutional, it’s been upheld in court, and I got permission from the speaker and the senate president to wave the rules,” Sinema said.

…”The bill requires them to be at least 300 feet away from the funeral from an hour before the funeral starts to an hour after it ends and that way people can grieve and love in peace,” Sinema said.

The bill passed the Arizona House and Senate in record time, and was signed into law at 3:00pm by Governor Brewer. The first funerals will take place on Thursday. The Boston-based Phelps-A-Thon has pledged to make a donation to Wingspan’s Anti-Violence Project of Southern Arizona for every funeral the Phelps clan protests. Wingspan is the LGBT community center for Tucson and southern Arizona. You can also donate directly to Wingspan here.

Meanwhile President Barack Obama has announced that he will speak at a community memorial service scheduled for tomorrow evening. The memorial begins at 6:00pm MST at the McKale Center on the University of Arizona campus.

“We Are A Nation That Says ‘Out Of Many, We Are One’”: Obama Signs DADT Repeal Into Law

Jim Burroway

December 22nd, 2010

Today, President Barack Obama signed historic legislation which begins the process of ending the long-standing ban against LGBT people serving openly in the armed forces.

President Obama hailed the legislation as a key milestone in the civil rights struggle for LGBT Americans:

No longer will our country be denied the service of thousands of patriotic Americans who are forced to leave the military – regardless of their skills, no matter their bravery or their zeal, no matter their years of exemplary performance – because they happen to be gay. No longer will tens of thousands of Americans in uniform be asked to live a lie, or look over their shoulder in order to serve the country that they love.

…We are no longer a nation that says ‘Don’t Ask, Don’t Tell.’ We are a nation that says ‘Out of many, one.’

Present at the signing ceremony was former Marine Staff Sargent Eric Alva. He was the first American to be injured during the invasion of Iraq when he stepped on a land mine and lost his leg in the explosion. As he was recovering at Bethesda Naval Hospital, he was visited by President George Bush, first lady Laura Bush, and Defense Secretary Donald Rumsfeld, none of whom knew that he  was gay.

Also present at the signing ceremony was Lt. Dan Choi,who was discharged last summer from the New York National Guard under “Don’t Ask, Don’t Tell.” More recently, he has been recovering from a breakdown due to Post-Traumatic Stress Disorder, brought on by his service in Iraq and compounded by stress over his public advocacy for DADT’s repeal.

President Obama hailed the law, saying it will “strengthen our national security and uphold the ideals that our fighting men and women risk their lives to defend. Noting that LGBT Americans have fought bravely in every war since the Revolution, Obama applauded the additional sacrifices that they made because of the burden of serving in silence. “None of them,” he added, ”should have to sacrifice their integrity as well.”

The Don’t Ask, Don’t Tell Repeal Act of 2010 specifies that the 1993 Don’t Ask, Don’t Tell legislation will become stricken from the law sixty days after the President, Defense Secretary, and the Joint Chief of Staff of the Armed Forces certify to Congress that the Defense Department has ”prepared the necessary policies and regulations” to allow LGBT members to serve openly, and that those policies are “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.”

No further action by Congress is called for in the Act’s language, but for the time being, DADT is still the law of the land. Active LGBT servicemembers are urged to remain circumspect in disclosing their sexual orientation.

Repealing DADT is more than just a matter of ending discharges and accepting gay applicants. The Pentagon Study that was released three weeks ago identified numerous regulations which will require revisions. Many of these regulations touch on such matters as deployment, off-base and on-base housing, family hardship considerations, family bereavement, sexual harassment, workplace nondiscrimination, and many other personnel policies. This is in addition to training and policy communications which will need to take place throughout the ranks of the armed services.

Given the scale of the report’s recommended policy changes to accomplish DADT repeal, some observers believe that it may take as long as a year to fully implement the changes needed to support DADT’s ultimate repeal. Based on historical precedent, I would agree with that assessment. When President Harry Truman signed Executive Order 9981 in 1948 ordering the racial desegregation of the armed forces, it took the military more than three years to fully implement the order. Integration for personnel stationed in Korea, Okinawa and Japan didn’t occur until the end of 1951.

But that integration occurred against much greater opposition throughout the military and in American society as a while. DADT repeal is expected to go much more smoothly. Three quarters of Americans support repealing DADT, while the Pentagon’s study found that 70% of military personnel believe that having a gay service member in their unit will have a positive, mixed, or no effect on the unit’s ability to “work together to get the job done.” In an interview with the Advocate’s Kerry Eleveld, President Obama said, “My strong sense is [implementation] is a matter of months… Absolutely not years.” Obama repeated that pledge during his signing ceremony this morning. He said that the service chiefs are  ”committed to implementing this change swiftly and efficiently,” and he vowed, “We are not going to be dragging our feet to get this done.”

Possible DADT vote today

The opinions expressed in this post are those of the author and do not necessarily reflect those of other authors at Box Turtle Bulletin.

Timothy Kincaid

December 8th, 2010

There has been a heightened tension over the past few weeks surrounding the partisan positioning over whether to raise the current tax rates – and on whom – along with the extension of unemployment benefits and whether this battle would eliminate the possibility of a vote on the Defense Authorization Bill (which includes the repeal of DADT). But though I’ve had my douts, I’ve maintained a certain degree of optimism around the prospect.

This is too important to the White House. Not that the President is particularly impassioned about repealing the discriminatory policy, but he needs to shore up support from the more liberal end of the Democratic Party and this is an action that can help that goal. And I’ve also assumed from the beginning that a compromise would be reached in the tax/unemployment negotiations once everyone had an opportunity to make the speeches that their constituents want to hear.

So I’m not particularly surprised that Sen. Reid has announced that he will bring the Defense Authorization Bill up for a cloture vote today. And there is a good chance that it DADT repeal can be achieved.

In September, there were 56 Democratic Senators, of which two – Senators Lincoln and Pryor – voted against cloture. The two Independent Senators supported the vote, but all 42 Republicans withheld their support, claiming that the process cut them out of any ability to challenge specific spending items.

Since September, the Illinois special election removed one Democrat, replacing him with Republican Mark Kirk. But Sen. Pryor has announced that he will support DADT repeal and “will support procedural measures to bring it to a vote this year.” Unfortunately, his support is offset by Democratic Sen. Manchin who has now raised objections to the repeal. Thus, the count of all-but-certain votes for cloture are 53 Democrats and 2 Independents.

This means that five additional supporters are required from Republicans (and/or Sens. Lincoln and Manchin). There are currently two Republicans who have pledged support of repeal: Sen. Collins and Sen. Brown. But this support is conditional; Sen. Reid must allow Republicans to challenge and debate controversial provisions of the bill, including spending on certain programs that are believed to be based more on financial benefit to specific well-connected military contractors than on actual need. Reid, however, is fearful that unlimited debate would result in the hijacking of the process by endless irrelevant amendments intended to run out the clock.

And this may be the sticking point. Rumors are flying, and posturing, finger pointing, and accusations have begun. The Washington Post reports the position of Reid – as provided by an aide:

Reid has offered Collins a total of 15 amendments in order to get her to vote Yes — 10 for Repubicans and five for Democrats, the aide continues. Reid views this as a reasonable offer, because previous debates on defense authorization bills have had roughly this number of amendments offered, the aide adds.

But as of now, Collins has indicated this offer is “unsatisafctory,” the aide says. A Collins spokesperson denied this account in an email, but declined to elaborate.

I think it rather likely that this little battle will resolve itself. Senator Collins gains nothing by being portrayed as unreasonable and she is a experienced politician who is particularly skilled in crafting and controlling her image.

Assuming that Collins and Reid will find a mutually acceptable position (as, for now, I do), the question is just who else will vote for cloture. There are at least ten other possible supporting votes who are holding their cards close to their chest. We need three.

The President is reported to be calling Senators on both sides of the aisle.

UPDATE: Senator Lieberman is refuting the claims made by Reid’s aide:

“Senator Collins has been working in good faith to achieve an agreement on the process to move forward with the defense bill that contains the repeal of ‘Don’t Ask, Don’t Tell,’” Lieberman said. ”I categorically reject reports by uninformed staffers who have suggested otherwise.”

Lieberman said he wants “those responsible for such baseless allegations” to stop immediately and work to get to an agreement to the defense authorization bill to the Senate floor.

“We are making progress toward an agreement to move forward on the defense bill that includes the repeal of ‘Don’t Ask, Don’t Tell’ and I remain confident that we can reach an agreement, which is necessary before any vote on the motion to reconsider is taken,” Lieberman said.

If this turns out to be a posturing ploy from Reid’s office, it likely will backfire. Our community has become unwilling to accept the claims of Reid at face value.

The White House IS Showing Leadership on DADT Repeal

Jim Burroway

December 6th, 2010

It’s just not the leadership we expected to see two years ago. Consider the evidence as The Advocate’s Kerry Eleveld reviews Reid’s announcement of the Senate’s floor schedule:

Oh yeah, that.

The near-final nail in the coffin was delivered by Senate majority leader Harry Reid over the weekend when he announced the floor schedule for the week of December 6: nothing Monday, on Tuesday/Wednesday an impeachment trial of a federal judge from Louisiana, with the first votes of the week likely to come on Thursday.

Once the impeachment is a wrap, Reid noted that left “a pretty clear path” to what else needed to be addressed – tax cuts, a Continuing Resolution to keep the government funded, and the Strategic Arms Reduction Treaty plus votes on some other extraneous bills, one of which included the DREAM Act. …

Senate Armed Services Committee chairman Sen. Carl Levin — perhaps slightly dismayed at no mention of the National Defense Authorization Act — prodded Reid to “say something about the Defense bill.”

Oh yeah … that. “We’re also trying to figure out a time to move forward on the defense authorization bill,” Reid added, along with offering some minutiae about process and time being too scarce to debate the bill without putting limitations on the number of amendments and length of debate.

In other words, it’s not on Reid’s radar. Especially now that  he can’t milk it for the midterm elections.

Kerry also notes that DADT repeal hasn’t made the White House’s list of “must-haves” for the lame duck session. In fact, the White House’s list just happens to match Reid’s list to a tee. It’s also not among the White House’s talking points, nor does Press Secretary Robert Gibbs mention it unless asked directly — usually by Eleveld.

Defense Secretary Robert Gates can read the tea leaves as well as anyone. While he has supported DADT’s repeal from the very beginning, he told sailors aboard the aircraft carrier Abraham Lincoln in the Arabian Sea today, “I’d have to say I’m not particularly optimistic that they’re going to get this done.”

There’s a lot of talk that the demise of DADT repeal reflects Obama’s lack of leadership on this issue, but I disagree. I think it’s time we recognized that the White House HAS been showing leadership on DADT. It’s just not the kind of leadership we expected when he said its repeal would a a priority for him. Examples of Obama’s leadership include:

• Setting the contentious midterm year of 2010 as the year for repeal.
• Agreeing to a timetable that called for the Pentagon to study repeal but not complete its work or release its report until December — with just one month left before the 111th Congress expires.
• Actively discouraging any attempt to repeal DADT before the Pentagon releases its report.
• Refusing to lobby Capital Hill for DADT’s repeal.
• Opposing DADT’s demise through the courts by appealing the decision striking down DADT as unconstitutional.

Just as Harry Reid got exactly what he wanted when he deliberately set DADT repeal up for failure last September, we would have to be the world’s greatest fools not to conclude that Obama has gotten exactly what he wanted in this entire debacle as well. The entire strategy was laid out too deliberately to conclude otherwise. How this consciously engineered fiasco is supposed to serve him, I haven’t the foggiest clue. But then, I’m not the one make the political calculations here. All I can do is look at the evidence that is right in front of my nose. And it reeks.

And by the way, the HRC’s political calculator is worse than the President’s. Remember when Joe Solmonese was so confident in Obama’s plan? Good times.

DADT updates

Timothy Kincaid

November 18th, 2010

It is difficult to determine exactly how the effort to repeal DADT will shake out in the “lame duck” session. There is a great deal of discussion, news, and movement, and at the moment most seems promising.

The President has finally gotten personally involved (Politico)

Wednesday, Obama – who advocates criticized for not doing enough to influence the Senate vote – called Senate Armed Services Committee Chairman Carl Levin (D-Mich.) to “reiterate his commitment on keeping the repeal of, and the need for the Senate to pass this legislation during the lame duck,” White House spokesman Shin Inouye said Wednesday afternoon.

And senior White House staff are involved with strategy

On Wednesday evening, several high-ranking administration officials and top members of Senate Majority Leader Harry Reid’s staff met with gay rights advocates to review plans to bring the National Defense Authorization Act – an annual, must-pass military spending bill which contains language repealing the ban on gays in the military – to a vote in the coming weeks.

Republican Senator Collins and Independent-Democrat Senator Lieberman (the President’s point-person on the repeal) have written to the Secretary of Defense calling for the report on the Military survey to be issued in advance of the December 1 deadline so as to “alleviate some concerns” that Senators may have with repealing the policy.

Collins, who supported the repeal in committee and is committed to repeal, joined other Republicans and two Democrats earlier in the year to block a vote on the total Defense Authorization bill due to Sen. Reid’s unusual tactic of denying the ability of Republicans to introduce amendments to the bill. Support for allowing the usual debate has picked up support within the Democratic Caucus and so is less likely to be a sticking point. (Journal Constitution)

A dozen Democrats and Sen. Joseph Lieberman, an independent from Connecticut, urged Reid Thursday to allow an extended debate on the wide-ranging defense authorization bill, which includes language repealing the 1993 law known as “don’t ask, don’t tell.”

Lieberman said the Senate’s desire to adjourn before the holidays was no reason to curtail debate and give Republicans an excuse to oppose the bill. Last September, GOP senators blocked the bill because Reid wouldn’t allow the two weeks of debate they said was needed to address such major legislation.

And it appears that if Reid honors that process, at least two Senators will break any filibuster attempt by Senator McCain. (Stars and Stripes)

On Thursday, Sen. Joe Lieberman, I-Conn., told reporters that he believes at least two Republicans will side with repeal advocates when the issue is brought back up for a vote — but with conditions.

Republican Sens. Susan Collins of Maine and Dick Lugar of Indiana have pledged to him in private that they’ll vote to allow debate to continue on the defense authorization bill, which includes the repeal measure, “so long as there is a fair and open amendment process,” he said.

Also, as a possibility, is newly elected Senator Kirk, who is seated immediately to finish out the term of Senator Burris. While Kirk voted against including the DADT repeal in the Defense Authorization bill while a member of the House, he was one of five Republicans to vote for the bill with the repeal included. And Kirk’s stated reason for not including the repeal was that it did preceded the findings of the study, an objection that will no longer be true for this vote.

And few, if any, Senators have joined Senator McCain’s effort to discredit the report. Democratic Senator Jim Webb, who served as Secretary of the Navy under President Reagan and was the sole Democrat to vote in committee against lifting the ban on open service, gave the report high praise (wonk room)

I can’t, again having spent five years in the Pentagon. I can’t remember a study on this type of issue that has been done with this sort of care. Not even having seen it or knowing the results, but I know the preparation that went into it. So it’s going to be a very important study for us to look at and examine.

The only down side may be that the final report will include the reaction and response of the four chiefs of the military divisions. If they are universally opposed to repeal, McCain will seek to use their opposition as a basis for keeping the policy. However, if even one or two are supportive of the plan for implementation of the repeal, this could go a long way towards providing cover for Senators on the fence.

Another odd selling point could be that repealing the ban could resolve tensions between the government and educational institutions. The president of Harvard, which has banned ROTC since 1969, has invited the military to reestablish a presence on the campus once DADT is gone. (Reuters)

“A ROTC program, open to all, ought to be fully and formally present on our campus,” said Harvard President Drew Faust. She made the comment to welcome an evening speech by the Chairman of the Joint Chiefs of Staff Mike Mullen, the top U.S. military officer.

Faust drew applause from the audience of several hundred for the offer to restore the university’s Reserve Officer Training Corps program.

So although it is still tentative and a lot could still go wrong, for the first time in a long while, I think that there is a better than decent chance that Don’t Ask, Don’t Tell will be repealed before the end of the year.

UPDATE: Wonk Room is reporting that Republican Senators Murkowski intends to vote for repeal. The Washington Blade has also added Sen. John Ensign (R-Nev.) to the list of those in favor of repeal; his previous objection was to the timing of a vote before the survey was complete.

WSJ: DADT repeal is all but dead

Timothy Kincaid

November 8th, 2010

Laura Meckler at the Wall Street Journal is reporting on the imminent death of the repeal of Don’t Ask, Don’t Tell.

Advocates on both sides believed the issue had a chance of coming up in this month’s post-election session of Congress. Now that looks unlikely.

Sens. Carl Levin of Michigan and John McCain of Arizona, the top Democrat and Republican on the Senate Armed Services Committee, are in talks on stripping the proposed repeal and other controversial provisions from a broader defense bill, leaving the repeal with no legislative vehicle to carry it.

I’m not certain how she had determined that Levin and McCain’s efforts to remove the provision will be more effective now than their opposition when it was included. But it would seem to me that any effort to strip the repeal would require a vote on the floor and, unless those Senators who have committed to repeal renege on their promise, the votes are not with Levin and McCain. But perhaps there are peculiar rules which would allow such a move.

She also notes that the Administration is less than encouraging about the effort.

The Obama administration isn’t raising expectations that the issue will be considered this year. “I would like to see the repeal of ‘don’t ask, don’t tell,’ but I’m not sure what the prospects for that are,” Defense Secretary Robert Gates told reporters traveling with him in Australia over the weekend.

Asked what the White House priorities are for the coming congressional session, press secretary Robert Gibbs named four issues—tax cuts, a nuclear-arms treaty with Russia, a child nutrition bill and confirmation of Jack Lew as White House budget director. Asked why he wouldn’t put gays in the military on the list, Mr. Gibbs said it looked like Republicans would block action.

Supporters of the current policy gained high-profile backing over the weekend when the new commandant of the Marine Corps said he was concerned about unit cohesion and combat readiness if the policy was overturned. “There’s risk involved,” Gen. James Amos said. “This is not a social thing. This is combat effectiveness.”

Frankly, many of us are doubtful of the Administration’s commitment to gay issues. But surely President Obama is not so foolish as to call for repeal in the lame duck session and not follow through. Surely he will not actually show more commitment to defending DADT in court than he does in opposing it on the Hill. Surely he is aware that if he does so, he will lose the support and respect of those members of our community that still hold him in high regard.

Surely.

It Gets Better: President Barack Obama

Jim Burroway

October 21st, 2010

Whatever complaints and irritations the gay community has right now, this video matters. People do still listen to the President in a way in which they don’t listen to us bloggers and activists. Yes, people will make potshots at the speech. We’re pretty angry over DADT, DOMA and all the other areas of active discrimination that are written into our laws.

And as Alvin McEwen’s facebook friend said, “Heck, we can’t even thank someone without getting into an argument. ”

Well, I’ll go ahead and say it anyway: thank you Mr. President.

Read the transcript after the jump

Obama Administration does not appeal federal ruling… in favor of Alliance Defense Fund

Timothy Kincaid

October 15th, 2010

Anti-gay activists argue that the federal government has an obligation to appeal pro-gay rulings as far as they can. And this administration has – to date – chosen to appeal decisions that have been made in Federal Court which find anti-gay laws and policies to be in violation with the US Constitution.

But this argument is false. There is no legal obligation to defend laws, much less appeal the rulings of judges. And this administration’s Justice Department does not always challenge cases that they lose: (WaPo)

The U.S. Court of Appeals for the D.C. Circuit ruled Aug. 6 that the Park Service’s regulation forcing individuals or small groups to obtain a permit for First Amendment activities was unconstitutional. But the court upheld the agency’s policy of setting aside designated park areas for larger demonstrations and the sale of printed material after applicants obtained a permit.

The Justice Department this week declined to appeal the ruling.

Servicemembers United, which is furious with the Obama Administration for their decision to appeal Judge Phillips’ finding on Don’t Ask, Don’t Tell, noted their choice. They also noted who had challenged the Park Service, the notoriously anti-gay Alliance Defense Fund.

“In the very same week, the administration says that it absolutely must appeal a federal court’s decision on ‘Don’t Ask, Don’t Tell’ while it orders the Justice Department not to appeal a federal court’s ruling in favor of the conservative Alliance Defense Fund. This contradiction is simply incomprehensible and insulting,” said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “Servicemembers United renews its call for the administration to withdraw its appeal of both the ‘Don’t Ask, Don’t Tell’ ruling and the injunction pursuant to that ruling.”

I happen to think that the ruling reducing permit requirements for small casual gatherings is not unreasonable. But you have to admit that Nicholson has a point.