Box Turtle Bulletin

SLDN: Push Hard Against DADT

An all-important Senate cloture vote is scheduled for tomorrow on the Defense Appropriations Bill, which contains language that will initiate the process for repealing “Don’t Ask, Don’t Tell.” The Servicemember’s Legal Defense Network warns that there aren’t enough votes to break a Republican-led filibuster:

Here’s the phone number to the Capitol switchboard – they’re staffed 24 hours a day: (202) 224-3121. Need to know the name of your senator? Ask the operator and you’ll be transferred.

What to say while on the phone:

• Tell your senators to vote with Sen. Reid and Sen. Carl Levin in opposing the filibuster, defeat amendments to strike repeal, and defeat any crippling amendments.
• Senators should follow the lead of Sen. Carl Levin who will be managing the defense bill.
• It is critical that the vote on “final passage” takes place before senators leave for the election recess.

Call your senators now.

Log Cabin Republicans To Award Sen. Cornyn for Inspiring Pro-Gay Web Site

The Log Cabin Republicans have announced a slate of awardsthat they plan on handing out at their National Dinner on Wednesday. Among those to be honored is Sen. John Cornyn (R-TX), for providing inspiration for the name of Box Turtle Bulletin.

Okay, not quite. LCR will award him the Barry Goldwater Award “which recognizes leaders in the Republican Party who have served their nation with distinction in the model of the late Senator Barry Goldwater.” Sen. Goldwater, who was famoulsy supportive of his gay grandson, famously denounced the 1993 “Don’t ASk, Don’t Tell” policy, saying “You don’t need to be straight to fight and die for your country. You just need to shoot straight.” Cornyn, on the other hand, is famously un-Goldwaterlike in his opposition to overturning “Don’t Ask, Don’t Tell.”

Sharing Goldwater Award with Cornin will be Representative Pete Sessions (R-Dallas), Chairman of the Republican National Congressional Committee. He holds a similarly un-Goldwaterlike position on DADT. “I think it’s a slap in the face to the members of the military to be driven down a road that is driven by a political agenda from the left in this country rather than a wise policy,” he said on the House Floor last May.

The Senate will conduct an important cloture vote tomorrow on the Defense Appropriations Bill, which contains language which would begin the process of repealing DADT. Sen. Cornyn will almost certainly vote against cloture. He and Sessions will then receive their awards on Wednesday. Sen. Goldwater will roll over in his grave shortly afterwords.

McCain softens on DADT

The Washington Blade is noting that John McCain’s objections to the 2011 Defense Authorization Bill seem to have shifted.

The Arizona senator said Reid’s plans to attach to the legislation the DREAM Act, an immigration-related bill, and a measure addressing the “secret holds” U.S. senators can place on presidential nominations aren’t appropriate for defense legislation.

McCain also lamented how a hate crimes protections measure was attached last year to Fiscal Year 2010 Defense Authorization Act.

“Under this majority leader, we have witnessed the unfortunate and growing politicization of the national defense authorization act,” McCain said. “Time to offer and debate important, defense-related amendments to this bill on the floor is being limited or cut off, so that the majority leader can push through highly political legislation that has little or nothing to do with national defense — legislation that would never be referred to the [Senate] Armed Services Committee if it were introduced independently.”

Although this is hardly a new tactic (and one Republicans have employed before) I am sympathetic towards the complaint that the provisions to bills should be cohesive and related to each other.

They further note that McCain seems to be softening his stance on Don’t Ask, Don’t Tell

McCain also expressed discontent with the “Don’t Ask, Don’t Tell” repeal language in the bill, but had a notable change in rhetoric from what he’s said previously on the provision.

The senator acknowledged the “Don’t Ask, Don’t Tell” provision has relevance to the U.S. armed forces. McCain also said he has no position on “Don’t Ask, Don’t Tell” repeal at this time, but wants to wait for the Pentagon working group to complete its study on the issue on Dec. 1.

“I want to make one thing very clear: I do not oppose or support the repeal of ‘Don’t Ask Don’t Tell’ at this time, but I do oppose taking legislative action prior to the completion of a real and thorough review of the law,” McCain said. “A complete survey to evaluate the impact of repeal on the men and women serving in our military should be concluded before moving forward.”

Now that he is no longer facing a primary challenge from the right, it is not particularly surprising to see McCain’s new-found hardcore social conservatism start to melt a bit. While I’m glad that he’s backing off a bit (which may well result in the bill’s passage with the repeal intact), it truly is sad to see a once-principled statesman reveal himself to be a cynical politician in his waning years.

LCR asks for immediate injunction on DADT

From AP

Lawyers for the Log Cabin Republicans say their proposal filed Thursday in the Riverside, Calif., court asks Judge Virginia A. Phillips to impose a worldwide injunction on the “don’t ask, don’t tell” policy.
…
The government has a week to respond.

This puts the Obama Administration in a very awkward position.

UPDATE: From the LA Times:

Log Cabin Republicans attorney Dan Woods, from the White & Case law firm in Los Angeles, said leaders of the organization have been invited to discuss the case with members of the Obama administration in the next few days.

DADT Repeal Not Really a Repeal

So after a bit of a hiatus from BTB I am going to start blogging here more regularly — it’s good to be in Jim, Timothy, and Daniel’s company again!

As Timothy noted below, next week the Senate is planning to vote on repealing “don’t ask, don’t tell” as part of its yearly Defense Authorization Bill.  According to Metro Weekly‘s Chris Geidner, it looks like it will take up the repeal next Tuesday at 2:15 p.m.

Of course there are political hurdles — John McCain has threatened to veto the legislation until the military can conduct yet another review of the policy — even though it completely ignored the 1993 RAND Corporation study it paid $1.3 million for that found integrating the military would pose no threat to military readiness (for more on the history of DADT, you can check out my piece at The American Prospect here). What’s especially galling about McCain’s opposition is that the language wouldn’t actually repeal DADT; instead, it would give the military the power to get rid of it if its internal review says it wouldn’t hurt troop morale. Lobbyists and gay-rights activists I’ve spoken to here in Washington, D.C. seem pretty confident the ban will pass. One thing’s for sure — if it’s not done before Congress lets out so everyone can go campaign, it probably won’t happen for quite a while.

DADT repeal vote next week

From the Washington Blade:

A senior Democratic leadership aide, who spoke on the condition of anonymity, said Reid met with Senate Minority Leader Mitch McConnell (R-Ky.) on Monday to inform the Republican leader that the fiscal year 2011 defense authorization bill will come to the Senate floor the week of Sept. 20.

The aide said Senate leadership is anticipating the Senate won’t have unanimous consent to bring the legislation to the floor, so 60 votes will be necessary to end a filibuster and move forward with debate on the bill.

“We are going to take it the floor next week to see where the votes are,” the aide said.

The repeal of the military’s anti-gay Don’t Ask Don’t Tell policy is part of the 2011 defense authorization bill.

Where is the outcry?

After Judge Victoria Phillips found the Military’s anti-gay Don’t Ask, Don’t Tell policy to be in violation of the First and Fifth amendments of the US Constitution, the usual wacktivists shouted their indignation. But other than the wackadoodle fringe, no one seemed to be either surprised or upset by the decision.

We are in the middle of a sprint to elections and I’ve not yet heard a single politician seeking to make an issue over the end of DADT. No indignant speeches from Senators demanding that the will of the people be upheld. Not even the cantankerous military chiefs are grumbling. Nothing at all.

Which – more than any announcements by the President or congressional leadership – tells us that this policy is dead. Over.

And if there is any doubt, consider the most telling (and amusing) line from a Washington Post article:

McCain’s office did not return requests for comment.

White House Commits To Repealing DADT “This Fall”

I think this is the first time the White House has given a timetable for repealing “Don’t Ask, Don’t Tell”:

The Justice Department is studying the decision, including the question of its scope and immediate effect and we expect them to announce their next steps after that review is completed.  The President remains committed to legislative repeal of DADT, and he will continue to work with lawmakers to achieve that goal this fall.  And he will continue to work closely with Secretary Gates, Admiral Mullen, and the Joint Chiefs of Staff on an ongoing study of how to best implement the repeal. [Emphasis mine]

That is an official statement from White House spokesperson Shin Inouye as provided to the Washington Blade. Until now, the White House had been deferring to the Pentagon to set the pacing and means for repealing DADT, and they’ve been very cool to the idea of repealing it through the Defense Authorization Bill that has already passed the House and is awaiting action in the Senate. Now for the first time, the White House is putting itself ahead of Pentagon brass — as it should be in our system of government where the military is under civilian control as our founding fathers intended.

LGBT advocates have been vocal in their disappointment in the administration’s abandonment of leadership, and that is contributing to the “enthusiasm gap” among Democratic voters going into the midterms in November. Yesterday’s ruling declaring DADT unconstitutional just adds to the pressure on the administration, as everyone waits for word from the Justice Department on whether they will appeal the decision. With this latest statement, can Senate Majority Leader Harry Reid (D-NV), who is facing a tough re-election battle back home, avoid bringing the Defense Appropriations Bill up for a vote in September?

A few thoughts on LCR v. US

Ari Ezra Waldman, writing at Towelroad, has an excellent assessment of Log Cabin Republicans v. US, the court case in which the military’s discriminatory Don’t Ask, Don’t Tell policy was found unconstitutional. He answers some common questions and helps one understand the legal complexities of the law.

In addition, I have a few observations about the case and the decision.

1. Had this case been one brought by an individual, it might have become one of specific circumstances. In other words, a win in court might have been so narrow as to only apply to that one individual (as was the case in Witt v. the Air Force). But because this was an organization suing on behalf of members, the case became one of the constitutionality of the law, rather than the application for an individual.

Further, Log Cabin Republicans may be uniquely ideal for bringing the case.

Often gay organizations are perceived (often correctly) as being part of a progressive ideology which is generally hostile to military action, military service, and military life. However, as an organization that has long supported “a strong national defense”, the Justice Department could not suggest that the plaintiffs were disingenuous or hypocritical and there are no anti-military statements out there which could be brought up in court.

The two gay serviceperson’s organizations also could have sued and probably had less challenge to their standing. But in the court of public opinion, Log Cabin Republicans may have a greater ability to appear principled and less like an angry ex-employee. Further, LCR is more immune to accusations of being far-left anti-military activists due to their name alone.

2. The finding of violation of the 5th Amendment is particularly important. This is a continuance of the recent trend to find gay people to be a unique class of people, as opposed to just a behavior. As gay people continue to be a class, any efforts to enact laws which restrict the equality, freedom, or rights of gay people will be held to scrutiny and, as they all are based in animus, tossed out.

This is key to our freedom. If we are just a bunch of folks who whimsically decide to engage in some behavior, then such a decision can be punished without being in violation of the constitution. But as gay people are recognized as individuals sharing a common immutable trait, then such laws are held to higher and higher standards and such animus becomes not only legally but socially unacceptable.

DADT Rally At White House Announced

GetEqual and local Washington, D.C. LGBT advocates have announced a rally at 2:00 pm today in front of the White House to demand that President Barack Obama and Attorney General Eric Holder instruct the Department of Justice not to appeal yesterday’s ruling declaring “Don’t Ask, Don’t Tell” unconstitutional. The rally will also demand that Senate Majority Leader Harry Reid (D-NV) immediately schedule a vote on the Defense Authorization Act, which contains language that would start the process of repealing DADT.

GetEqual’s press release announcing today’s rally describes this as a “moment of truth for President Obama and his administration.” The rally will take place at the north side of the White House on Pennsylvania Avenue near Lafeyette Park.

Servicemenbers: Do Not Come Out

The Servicemembers Legal Defense Network warns gay and lesbian service members, including those in the Reserves and National Guard that yesterday’s ruling against “Don’t Ask, Don’t Tell” does not mean that the ban against gays and lesbians serving openly is lifted. Servicemembers are warned not to come out.

The deep-sixing of DADT is not a done deal, and it is unclear what practical impact this ruling will have at this stage. It may require further rulings in the Ninth Circuit Court of Appeals and possible the U.S. Supreme Court before the unconstitutional law is finally nixed. That’s why it is critically important that U.S. Senate Majority Leader Harry Reid place the Defense Authorization Bill, which contains language repealing DADT, on the September calendar before the Senate goes home ahead of the November elections.

Senate Not Off the Hook on DADT Repeal

Despite yesterday’s ruling that “Don’t Ask, Don’t Tell,” the military’s ban on LGBT Americans serving openly, violates the First and Fifth Amendments to the U.S. Constitution, the U.S. Senate is not off the hook in its obligation to repeal the 1993 law. It’s not clear at this stage whether any injunction which may be issued by U.S. District Court Judge Virginia A. Phillips would be binding on the U.S. government nationwide. If not, then it could still be years before the case is decided by the U.S. Supreme Court, and that assumes that the Department of Justice chooses to appeal the ruling.

The Senate is still in its August recess. When it returns this month, there will be tremendous pressure to quickly wrap up work so Senators can go back home and hit the campaign trail in November. Senate Majority Leader Harry Reid is expected to announce shortly whether the National Defense Authorization Act, which currently includes DADT’s repeal, will be on the legislative calendar. If it is not on the calendar, then the repeal will not likely occur in the current Congress. Some two-thirds of all Americans approve of DADT’s repeal, including most Republicans. As Dan Savage says, if this fruit were hanging any lower, it would be a potato.

Update: A potato? Make that a truffle. Late last night, OneMan-OneWoman, an affiliate of the National Organization for Marriage, tweeted, “There is no need to prohibit gays and lesbians from openly serving in the Armed Forces. They should have the opportunity to serve.” [Hat tip: Joe.My.God]

Federal Judge Declares “Don’t Ask, Don’t Tell” Unconstitutional

A U.S. District Court Judge in Riverside, California, declared that the law banning gays and lesbians from serving openly in the U.S. military violates the First Amendment rights of gay Americans:

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect” on the military.

Phillips said she would issue an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

The Judge’s ruling can be downloaded here. (PDF: 236KB/86 pages). Judge Phillips not only ruled that DADT violated the First Amendment guarantees of free speech and petition, she also ruled that the act violated LGBT service member’s rights to due process under the Fifth Amendment:

The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy “intimate conduct” in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don’t Ask, Don’t Tell Act was necessary to significantly further the Government’s  important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

The judge called for the plaintiffs to submit a proposed injunction to halt enforcement of the law by September 16th. The Department of Justice will have a week to submit their objections to the injunction if they choose to do so.

The case was filed by Log Cabin Republicans on behalf of LCR members including current, retired, and former members of the U.S. armed forces. LCR is justifiably proud of their accomplishment tonight:

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don’t Ask Don’t Tell statute violates the Constitution,” said Log Cabin Republicans Executive Director R. Clarke Cooper.  “Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

CBS Poll: support increases for couples

CBS has a new poll out which asks a slew of questions on a broad range of subjects, and a few of them related to gay issues.

Relatedly, today NOM’s Maggie Gallagher whined about Ken Mehlman’s support for marriage equality:

Supporting gay marriage, however, is a very different and very public matter… The American people — including over 80% of Republicans and even 40% of Democrats — oppose same-sex marriage. NOM has already proven in races from New York to California that it is a particularly bad idea for Republicans to support gay marriage.

First up was marriage:

q57 Which comes closest to your view? Gay couples should be allowed to legally marry, OR
gay couples should be allowed to form civil unions but not legally marry, OR there should
be no legal recognition of a gay couple’s relationship?

40% – Allowed to legally marry
30% – Civil unions
25% – No legal recognition
5% – don’t know / no answer

We are now seeing some consistency to support for full marriage equality. In April, CBS reported 39% in favor of equality, and this confirms that April’s response was not a fluke.

But more importantly, the opposition to any legal recognition appears to be weakening For quite some time, nationally the polls have revealed a fairly even 1/3 split between marriage, civil unions, and nothing. At 25% is the lowest I’ve seen reported in the “nothing” category.

As for Maggie’s assertions about Republicans, they just don’t seem to hold up to the facts (like so very much that she says). Actually, Maggie and other opponents of gay couples also appear to be losing their sole demographic.

According to this poll, only 37% of Republicans oppose all recognition, while one in four Republicans now support marriage equality with an additional 34% opting of civil unions. Considering that well over half of Republicans now support couple recognition, this may well help us understand the party’s silence on both of the recent Massachusetts and California judicial decisions and the “congratulations” response to Kel Mehlman’s recent decision to come out. And Maggie’s increasing appearance of anger and depression.

Next came DADT:

q58 Do you favor or oppose permitting gay men and lesbians to serve in the military? Do
you favor/oppose that strongly or not so strongly?

54% – Favor strongly
21% – Favor not so strongly
10% – Oppose not so strongly
9% – Oppose strongly
6% – Don’t know / didn’t answer

No real surprises. As we have long known, large majorities of Americans favor gay service personnel (including 70% of Republicans). This number is up about 5% from earlier this year, mostly from the undecideds.

What is interesting is that 61% of Americans who have served or are currently serving in the military agree (sorry, Elaine Donnelly).

But then CBS skewed their own survey by asking the question a second time, but this time emphasizing “openly announcing their sexual orientation”.

q59 What if they openly announce their sexual orientation? in that case would you favor
or oppose permitting gay men and lesbians to serve in the military?

This is odd phrasing; “openly announce” suggests some form of aggressive activism.

Further, by asking again, CBS implies that this should change your answer. Any time a pollster asks, “yeah, but what if…” it will almost always result in some who question their first response and instinctively change it.

The poll would have been much more accurate had it simply asked the first question with the word “openly” before gay. I very much doubt that q58 would have had different results, as that is what most people would think they were answering anyway. But by asking a second loaded question, the “favor” numbers dropped by 11%.

Three quarters of military could not care less about repealing DADT

It is becoming increasingly evident that the most significant disturbance that the repeal of Don’t Ask Don’t Tell could have on the morale of the troops may well be the annoyance of having to fill out a survey. Because they certainly don’t seem to be in any rush to inform the Pentagon of their concerns, if they have any.

A few weeks ago, the military brass had to come out and make statements encouraging soldiers to fill out their surveys. It was very important so that they could “understand possible impacts associated by repeal of the Don’t Ask, Don’t Tell law.” And at that time, they only had a 10% response rate.

Well, the deadline has passed and not many responded to the DOD’s appeal. (Wendy City Times)

Department of Defense spokeswoman Cynthia Smith told CNN that just two days before the Aug. 15 deadline about 104,000 of the 400,000 100-question surveys had been returned.

This is about the expected response rate for a long survey. But this survey was special; it was the opportunity for military personnel to weigh in on a matter which was before Congress and which some Senators are convinced is of great importance to them.

And they really just couldn’t care less. Alexander Nicholson, executive director of Servicemembers United, said,

“From what we are hearing, troops have little interest in this survey and simply just don’t care about this policy change,” he said. “While the Department of Defense and Westat [ the research firm behind the survey ] are spinning the low response rate to the ‘don’t ask, don’t tell’ survey as expected and sufficient, neither are disclosing the fact that the military leaders have had to put significant pressure on troops on multiple occasions to even get this level of response.”

Nicholson added, “Some commanders and senior leaders have even told subordinates that participation is mandatory. These occurrences further degrade the credibility of this survey’s methodology and violate ethical standards that prevent researchers from compelling respondents to participate in survey research.”

Although Congress is fretting over the horrible possibility of troop morale being decimated, the men and women of the military have looked at this whole conflict and answered. With a collective yawn.