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Posts for December, 2011

Servicemembers United’s Alex Nicholson responds to Gov. Perry

Timothy Kincaid

December 9th, 2011

As an illustration of “Obama’s war on religion” and “liberal attacks on our religious heritage”, GOP presidential candidate Rick Perry cited “gays can serve openly in the military”.

Not only is Perry’s statement bigoted, it has almost no reflection on reality. While Barack Obama was in favor of repealing the Military’s Don’t Ask, Don’t Tell policy, the change did not originate in the White House nor was it a significant priority of the President.

Most know of the December 2010 vote in Congress and it goes without saying that much credit is owed to Sens. Susan Collins (R-ME) and Joe Lieberman (I-CT) who orchestrated a bipartisan effort that eventually gained the support of eight Republicans and all but one Democrat. But less known is the impetus behind the change, the lawsuit brought by Log Cabin Republicans against the Military and its policy.

Those of you who followed the efforts towards that repeal either here at Box Turtle Bulletin or elsewhere know that the repeal process, which had been of little interest in Congress, suddenly took on a new life after September 9, 2010 when U.S. District Court Judge Virginia A. Phillips sided with Log Cabin Republicans in their lawsuit against the military and its anti-gay policy. Her injunction the following month led to a brief official cessation of the policy (until appeals were filed) and was the unofficial end of Don’t Ask, Don’t Tell as a hiring and detaining policy.

But even so, this ruling did not work alone. Significant lobbying efforts in Congress provided Congressmen and Senators with the information about public attitudes on the repeal effort. And those attitudes were impacted by a steady stream of ejected service members who refused to quietly go away in shame.

In fact, if one looks at the parties most heavily involved in the change of policy, the one thing that becomes clear is that this was not in any way an attack on religion nor were the leading advocates for change particularly “liberal” (though that is undoubtedly the dismissive label that Rick Perry would assign to Senator Collins, Log Cabin Republicans, and the men and women risking their lives for his freedom).

One man at the heart of the effort was Alex Nicholson. As both the plaintiff in Log Cabin’s case and as the founder of Servicemembers United, Alex had his feet planted in both the legal and the legislative efforts to end this discrimination. And Alex, writing a guest column for CNN, reminds the Governor that not only was the repeal not a “liberal attack on religious heritage” in its implementation, but that it did not speak only to the wishes of liberal Americans.

The ad begins: “I’m not ashamed to admit I’m a Christian. But you don’t need to be in the pews every Sunday to know that there’s something wrong in this country when gays can serve openly in the military, but our kids can’t openly celebrate Christmas or pray in school.” What’s really wrong with that statement is that solid majorities of his fellow Republicans, self-described conservatives, and even weekly church-goers disagree with him on open gays and lesbians serving in the military.

Among these demographics, independent polling more than two years ago demonstrated surprising levels of support for repealing that archaic law, including 58% of Republicans, 58% of conservatives, and 60% of those who attend church weekly. Those numbers are likely significantly higher now that the repeal of “don’t ask, don’t tell” has come and gone without the U.S. military falling apart at the seams as predicted. Indeed, even the commandant of the Marine Corps, Gen. James Amos, who predicted disaster if the law were repealed, has come around, recently admitting that the repeal of “don’t ask, don’t tell” has been smooth sailing for the Marine Corps, as it has for the other branches of the armed forces.

So not only does Gov. Perry now find himself at odds with the majority of the American people and even his own conservative base on the righteousness of us being finished with “don’t ask, don’t tell,” but he is also at odds with the senior defense leadership. It was, after all, a Republican-appointed secretary of defense — Bob Gates — and a Republican-appointed Chairman of the Joint Chiefs of Staff — Adm. Mike Mullen — who called for an end to the ban on known gay men and women serving in the military.

Rick Perry suffers from a delusion, a common one really. He believes that people who identify in the same way that he identifies must share the same bigotries and hatreds that he has.

We’ve seen it many times before. Someone in a cocktail party will assume that due to your skin tones that you’ll find her racist humor funny. Or because it’s all ‘just us guys’ that the room will agree with his demeaning comments about women.

And Rick Perry, being a Texas Republican who has never had any electoral cost to pay for his long pattern of blatant homophobia, thinks that all Republicans hate gay people the same way that he does. But that day is gone.

It is true that Republicans, on the whole, are significantly less supportive of gay issues and that they, on large, start from an adversarial position. But like other Americans, this demographic too is coming to discover that people whom they know and love are gay and, even more important, they are recognizing that unbased bias carries a social cost.

Rick Perry may have been well served by appealing to fear and loathing of gay people in a national Republican primary as recently as a decade ago. But after this ad, I think that Rick Perry is going to discover that he’s not in Texas anymore.

The Daily Agenda for Thursday, September 1

Jim Burroway

September 1st, 2011

TODAY’S AGENDA:
Civil Partnerships Go Into Effect: Liechtenstein. Last June, voters in the alpine principality between Switzerland and Austria voted overwhelmingly to allow civil partnerships for same-sex couples. The new law stops short of marriage equality — registered same-sex unions are still barred from adopting children and from access to reproductive services through the country’s health plan — but it does provide for inheritance, social security, pensions, immigration and naturalization, and tax law recognition for same-sex couples on par with married heterosexual couples. That law goes into effect beginning today.

Federal DADT Court Case Resumes: Pasadena, CA. Lawyers for Log Cabin Republicans return to court today to present oral arguments in the Don’t Ask, Don’t Tell case before three judges of the Ninth Circuit Court of Appeals. The argument is over whether the federal law banning gay men and women from serving openly in the military is (or was) unconstitutional. A lower court said it wasn’t, but the Justice Department appealed. DADT is slated to officially become history on September 20, and so you might wonder why they are still fighting in court. The problem is that while Congress has repealed the law, the repeal did not include an anti-discrimination provision preventing a future president from re-imposing the ban via Executive Order. And with most of the GOP line-up contending for the party’s nomination for 2012 promising to “repeal the repeal,” DADT’s demise may end up being a mere hiatus. Oral arguments begin this morning at 9:00 a.m. PDT at the 9th Circuit Court House in Pasadena.

Pride Celebrations This Weekend: Atlanta, Ga (Black Pride); Calgary, AB; Cardiff, Wales; Duluth, MN; Essex, UK; Québec City, QC; Leicester, UK; Oakland, CA; Reading, UK and Scarborough, UK.

Also This Weekend: Burning Man, Black Rock Desert, NV and Southern Decadence, New Orleans, LA.

TODAY’S AGENDA (THEIRS):
North Carolina Awake!: Gastonia, NC.
The Liberty Counsel is continuing its series of “Awake!” conferences with a meeting this evening at Bethlehem Church in Gastonia, NC because, of course, “There’s a war waging:”

Christianity is under attack in our schools, workplaces, and governments. Silence is a decision to stand with the enemy. Inaction is a deathblow to the God-honoring principles our country was created to allow each citizen to enjoy.

Speaking at tonight’s conference will be Liberty Counsel head Mat Staver, along with Rick Green, who is a member of fake-historian David Barton’s WallBuilders. The North Carolina legislature is expected to take up a constitutional amendment to ban marriage equality in this session.

TODAY’S BIRTHDAY:
Lily Tomlin: 1939. She began her comedy career as a stand-up comedian in the 1960s when she quickly landed a spot on NBC’s Laugh-In. Her many memorable characters quickly became the stuff of pop culture: Earnestine, the nasal, nosy, and obnoxious telephone operator who epitomized the bureaucratic condescension of the old Ma Bell monopoly (“We don’t care, we don’t have to…we’re the phone company.”); Edith Ann, the five year old girl sitting in an oversized rocker with her observations of the crazy crap the adults around her were pulling (and always ending her monologues with “…and that’s the truth. Phhhht!”); And Mrs. Judith Beasley, the prim and proper “tasteful lady.” In 1977, she became the first woman to appear solo on Broadway with Appearing Nitely, and in 1985, she starred in another one-woman Broadway show, The Search For Signs of Intelligent Life in the Universe, written by her long-time partner, writer-producer Jane Wagner. In 1980, Tomlin appeared in the hit movie Nine to Five, with Jane Fonda, Dolly Parton, and Dabney Coleman, and she hit movie pay dirt again in All of Me with Steve Martin.

Tomlin and Wagner have been together since 1971, and while their relationship was never much of a secret, the press remained pretty mum. When Tomlin officially came out in 2001, it hardly seemed necessary. “Everybody in the industry was certainly aware of my sexuality and of Jane… In interviews I always reference Jane and talk about Jane, but they don’t always write about it.”

If you know of something that belongs on the agenda, please send it here. PLEASE, don’t forget to include the basics: who, what, when, where, and URL (if available).

Ninth Circuit lifts stay on Log Cabin’s DADT victory. Policy unenforceable immediately

Timothy Kincaid

July 7th, 2011

[Sorry folks, I thought I had posted this yesterday but I guess I forgot to hit "publish"]

From the LA Times

A federal appeals court in San Francisco issued a ruling Wednesday that ends enforcement of the law banning openly gay people from serving in the military, citing the Obama administration’s recent determination that gays and lesbians have suffered a history of discrimination.

The statute known as “don’t ask, don’t tell” was ruled unconstitutional by U.S. District Judge Virginia Phillips in September, and a ban on its enforcement was imposed a month later. The U.S. 9th Circuit Court of Appeals stayed Phillips’ ruling, though, while it was being appealed and to allow the Defense Department time to prepare for integrating gays into the armed services.

A three-judge panel of the appeals court lifted that stay in a two-page order Wednesday, granting a motion brought by the Log Cabin Republicans, a gay-rights advocacy group that sued the federal government over “don’t ask, don’t tell” seven years ago.

There are several reasons why this case is important.

First, should the Ninth Circuit uphold the victory as seems likely, it takes the matter out of the hands of any future hostile administration or Congress. While it’s unlikely that Congress would reinstate the ban, it removes the possibility.

As importantly, it alleviates the possibilities of delaying tactics or conditional reversal or partial retainment of discrimination. Matters of housing or full inclusion cannot be accepted as “policy” but would be held to the scrutiny of constitutional challenge and those establishing or administering such policy would keep that in mind.

But most importantly of all, I believe that this is the first time that a Federal Circuit Appellate Court has taken the position that a stay on the reversal of a discriminatory policy was more harmful to gay people than to those seeking to uphold the discrimination. THAT’S A BIGGIE, FOLKS. And it establishes a precedent that reflects an entire shift in perspective. The presumption no longer is in favor of the status quo.

Further, this is fascinating in that the Ninth Circuit cited the Administration’s new views about anti-gay discrimination requiring heightened scrutiny. Remember, the Ninth Circuit has yet to rule on the Perry v. Schwarzenegger appeal and (should the Proponents be deemed to have standing), if the same consideration is given then it seems likely that the ruling will stand.

And I would not be surprised it Olson and Boies immediately filed a motion to have the stay lifted on Perry.

UPDATE:
The original title of this posting was inaccurate. The Ninth Circuit did not uphold Log Cabin’s victory over DADT but rather lifted the stay during appeal.

Administration continues to defend DADT in court, but with concessions

Timothy Kincaid

February 26th, 2011

Although President Obama has announced that discrimination against gay and lesbian Americans should be held to a stricter scrutiny than rational basis, the Obama Administration continues to defend Don’t Ask, Don’t Tell in its appeal to the court challenge by Log Cabin Republicans. But the President’s position has impacted how the Department of Justice is arguing their case. (LCR Press Release)

“The government’s brief is stunning for what it does not say. As expected, it argues that Log Cabin Republicans lacked standing to bring the case and that Judge Phillips lacked authority to issue a world-wide injunction. Judge Phillips’s 85-page decision from October 2010 covered these points in great detail, and we are confident that the government’s arguments on these points will be rejected. The government’s only other argument is that the recent repeal of Don’t Ask, Don’t Tell was constitutional but that was not an issue tried before Judge Phillips and was never part of the government’s case before. The government’s brief does not address the due process or first amendment issues on which Judge Phillips based her decision nor the standard of review applicable to our challenge to the constitutionality of Don’t Ask, Don’t Tell. By not arguing merits of the constitutionality of Don’t Ask, Don’t Tell, the government’s brief, by its silence on these issues, is effectively conceding that Don’t Ask, Don’t Tell was and is unconstitutional. While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don’t Ask, Don’t Tell is constitutional. This is a major change in the government’s position.”

Lest future Congresses or Presidents seek to reinstate discrimination in the Military, it is important to our community that LCR’s victory be confirmed.

Log Cabin case against DADT continues forward

Timothy Kincaid

January 29th, 2011

For decades our community has fought for our right to serve in the US Military on the same terms as anyone else. And finally, we have a timeline, a near future, in which such a scenario seems likely. And for most of us, the end to this offensive and unnecessary ban is more important than the way in which it is ended. Just so long as the long wait is over.

But the manner by which Don’t Ask, Don’t Tell – and the pre-existing ban is moderated – comes to a halt has a great deal of impact on other matters of importance to our community. There are both positives and negatives to both the judicial and the legislative solution.

If the courts strike this ban down as discriminatory, then it sets continuing precedent that anti-gay discrimination is in violation to the US Constitution. But this can have the effect of appearing to be “judicial activism” overriding the will of the people’s elected legislature and can be ammunition for the social conservatives’ attack on the US judicial system.

If the legislature provides resolution, this gives a blessing to the solution as being “of the people”, but it also leaves the matter open to future reversals. Additionally, the current projected termination of the anti-gay policy does not prohibit discrimination, it simply ceases the institutionalization of the practice. Of concern is also a threat by some Republicans in the incoming House to find a way to block implementation of the repeal.

Fortunately (and this really rarely happens) we have both legislative and judicial solutions. Congress has voted to reverse DADT and the President is projecting a short implementation. But also, the Federal Court has found that DADT – or, indeed, any arbitrary ban on gay soldiers – violates the US Constitution. And the timing of such is that they are both occurring simultaneously.

In September of last year, Judge Victoria Virginia Phillips found that DADT is unconstitutional. The government appealed, and has been actively fighting that decisions since. Even after Congress acted to reverse DADT during the lame duck session, the government requested that the proceedings be stayed until the ban was lifted and the case become moot.

As I noted above, that would not be in our best interest. And yesterday Judge Phillips the Ninth Circuit Court of Appeals denied those efforts and set a schedule for the case to continue:

The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government’s opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans’ answering brief and supplemental excerpts of record are due March 28, 2011; and the government’s reply brief is due 14 days after service of the answering brief.

The best of all possible worlds would be for the courts to conclusively determine that any ban on open gay service is unconstitutional (for the appeal to be denied or dropped) but for the President’s timeline to be administered. It looks as though this is a possibility.

LCR: Keep DADT Appeal Alive

Jim Burroway

January 11th, 2011

Even though “Don’t Ask, Don’t Tell’s” repeal has been signed into law, the Log Cabin Republicans have filed a brief with the 9th U.S. Court of Appeals asking the court to continue considering whether a lower court judge was right to strike down the ban. Pointless, you say?

“Despite what the government has led the American people to believe, Don’t Ask, Don’t Tell has not been repealed and will likely remain the law of the land until the end of 2011,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans in Log Cabin Republicans vs United States of America.  “In the meantime, openly gay individuals are not free to enlist in our armed forces, current service members must continue to live a lie, and the government continues to investigate and discharge service members.  What’s more, the government is trying to delay the briefing and argument on its appeal from the judgment and injunction obtained by Log Cabin Republicans.  The government asked us to agree to the delay and we were willing to do so on one condition: that the government halt all pending investigations and discharges during the period of delay.  The government refused, and its attorneys said that investigations and discharges will continue.”

The actual repeal won’t occur until sixty days after the President, Secretary of Defense and Chairman of the Joint Chiefs of Staff certify to Congress that everything is in place: all the training, policies changes, changes to the military code of conduct, and so forth. This is expected to take several months. If there is any good news there, Sen. John McCain (R-AZ), who was the most hard-over opponent of DADT’s repeal, now says that he’s ready to “make it work.”

DADT round-up

Timothy Kincaid

December 3rd, 2010

Yesterday the Chairman of the Joint Chiefs of Staff and the Secretary of Defense testified before Congress in favor of repealing Don’t Ask, Don’t Tell. Today the Service Chiefs testified with mixed messages.

Marine Corps Gen. James F. Amos said that he didn’t want repeal “at this time.” I think it’s pretty clear is that Gen. Amos doesn’t want repeal at any time under any circumstances due to his own personal prejudices.

Army Chief of Staff Gen. George W. Casey Jr. believes that DADT should be repealed eventually but not right now.

Air Force Gen. Norton A. Schwartz thinks that the repeal should occur, but that the report is too optimistic. He recommended repeal, but that the change not take effect before 2012.

Only Chief of Naval Operations Adm. Gary Roughead supported the immediate repeal of the policy (LA Times)

Navy sailors routinely train and work in close quarters alongside the service members of allied navies that allow homosexuals to serve openly, said Roughead. After studying the integration of gay sailors into other navies over the past decade, Roughead described the impact on the effectiveness of the force as a “non-event.”

John McCain, of course, will not be listening to the Navy Chief. Rather, he has been obsessing over the subset of the Marines who oppose repeal. Do you get the impression that if the typists in the stenopool were the only servicepeople who opposed repealing the policy, that McCain would declare them to be the most essential part of the Military operation?

Meanwhile, everything is being held up by the Republican Senators’ cohesive effort to force a vote to extend current tax rates. (And no, this is not a tactic that was created to block DADT.) It is difficult to know whether this block will hold together should a compromise plan be proposed (one that does not define a couple making $250,000 in Los Angeles as “millionaires and billionaires” but draws a higher threshold.)

Eventually, the Defense Appropriations bill will go before the Senate. And even in the new Senate, there may not be enough Republican votes to uphold a filibuster.

To date, at least two Republican Senators have pledged support (and more are likely): Susan Collins of Maine and Scott Brown of Massachusetts:

“I have been in the military for 31 years and counting, and have served as a subordinate and as an officer,” said Mr. Brown, who is in the Massachusetts National Guard. “As a legislator, I have spent a significant amount of time on military issues. During my time of service, I have visited our injured troops at Walter Reed and have attended funerals of our fallen heroes. When a soldier answers the call to serve, and risks life or limb, it has never mattered to me whether they are gay or straight. My only concern has been whether their service and sacrifice is with pride and honor.”

Mr. Brown added, “I pledged to keep an open mind about the present policy on ‘don’t ask, don’t tell.’ Having reviewed the Pentagon report, having spoken to active and retired military service members, and having discussed the matter privately with Defense Secretary Gates and others, I accept the findings of the report and support repeal based on the secretary’s recommendations that repeal will be implemented only when the battle effectiveness of the forces is assured and proper preparations have been completed.”

Meanwhile a very influential voice on the right has joined in calling for an end to the ban.

It is time to recognize the desires of all people competent to serve in our Military and afford them the opportunity to contribute to this noble, often thankless, but very necessary profession.

Dr. Laura was immensely proud of her son’s service in the Marines Army and would often reference it on her show. This endorsement carries a great deal of weight with her listeners.

Although there are various sound-bites that supporters and opponents can latch onto from the past two days of testimony, there is one thing on which all of the Chiefs agree: that legislative repeal will be far less disruptive than a judicial decision ending the policy. And they have good reason to fear just such a decision.

The ONLY defense provided by the Department of Defense in Log Cabin v. the US was that Congress was going to repeal the policy and that they should be allowed to do so. Should Congress fail to take such action, then there is no argument whatsoever that the government has left to make in the appeal to Log Cabin’s victory.

And Log Cabin will not play nice with the administration. They will undoubtedly file with the appeals court that the appeal be tossed out and that, at the very least, the current hold on the injunction be lifted. The Department of Defense can hardly claim a likelihood of success in the courts if they have nothing at all on which to base their defense.

There is a very real possibility that if Congress declines to enact a plan to roll out a gradual repeal, the courts could end the policy immediately. And while McCain would rather play Curmudgeon in Chief, those who care about defense policy should carefully consider the consequences of inaction.

DADT update: McCain looking more extreme

Timothy Kincaid

November 23rd, 2010

Most of the recent news about the potential repeal of the Military’s anti-gay Don’t Ask, Don’t Tell policy surrounds the report on the Military’s survey of troops and families. And it is not looking good for DADT’s chief defender, Sen. John McCain.

McCain continues to trumpet his latest objection to repeal, his assertion that the report didn’t ask the right questions. In fact, it now appears that McCain has been in correspondence with the Pentagon over this issue for some time. In April he objected that the survey was studying whether the repeal would have impact on the troops and how best to go about it rather than whether the ban should be lifted. In September, he tried again, this time writing to Secretary of Defense Robert Gates, on Armed Services Committee stationery, making suggestions as to the extent and content of the survey:

I urge you and Admiral Mullen to modify the review and survey instrument, or to conduct supplemental surveys, aimed at ensuring that the question of whether the DADT policy should be changed is answered.

It is essential – and I think it’s clear that the Service Chiefs strongly agree with this point – that the survey provide the input needed to inform the Department and Congress on the views and recommendations of those most effected by this change, the men and women in uniform.

Gates’ response rejected McCain’s suggestion and politely reminded him that the Military is not structured as a democracy:

It is not part of the working group’s mandate to ask Servicemembers the broad question of whether they think DADT should be repealed, which, in effect, would amount to a referendum. I do not believe that military policy decisions — on this or any other subject — should be made through a referendum of Servicemembers.

As his letter suggests, the Curmudgeon in Chief is relying on the “strong agreement” of the Service Chiefs to provide a basis for his public opposition of open service. Last week he told reporters, “I respect and admire these four service chiefs who have expressed either outright opposition or deep reservation about the repeal.”

McCain seems to be relying on letters he solicited and received in May from the individual Chiefs and which he interpreted to be an endorsement of the anti-gay policy. But he really should have read them more closely before waving them on the floor of the Senate and touting them as agreeing with him.

Because, as it turns out, the Service Chiefs had reviewed the questions and, according to Gates, “fully support the approach and efforts of the working group.” As some of them have expressed in the past few days.

Over the weekend, Navy Chief Adm. Gary Roughead, who had written that “the best approach would be to complete the DOD review before there is any legislation to change the law” now seems pleased with the review. (National Journal)

“I think the survey, without question, was the most expansive survey of the American military that’s ever been undertaken,” Roughead said during an interview Saturday aboard his plane. “I think the work that has been done is extraordinary.”

This morning Air Force Chief Gen. Norton Schwartz echoed the praise (The Hill)

“The study was a good process; it was healthy; it is informative,” Schwartz told reporters at a breakfast meeting. The Air Force chief declined to offer any specifics, stressing his commitment to keep his recommendations to the Pentagon leadership confidential for now.

The sole negative comment appears to be that of Marine Chief Gen. James Amos, who said earlier in the month that now was not the right time to lift the ban. While this comment was made before the draft or the report was leaked and the Service Chiefs’ comments were incorporated, Amos may be McCain’s only ally in his quest to keep institutionalized discrimination in the Military.

Or, should Amos support the conclusions of the report, McCain may be standing alone, supported only by religious zealots and obvious bigots.

Secretary Gates has also taken the step of making at least a token effort to respond to Senators Lieberman and Collins’ request to expedite the release of the report. (WaPo)

Defense Secretary Robert M. Gates has ordered the report to be released Nov. 30, one day earlier than planned, “to support Congress’s wish to consider repeal before they adjourn,” Pentagon spokesman Geoff Morrell said Sunday.

However, we should be cautious not to be overly optimistic about the report. The recommendations, while based on survey responses which are leaked to be positive, may well be far less than we hope for. I very much doubt that this report will call for an immediate repeal of the ban.

Rather, I suspect that it will suggest a phase-in of repeal, perhaps emphasizing certain branches of service enacting open service earlier than others. I also suspect that it will involve the transfer of openly gay servicemembers from certain forms of service to other forms, rather than discharge.

Whatever the recommendations, they are likely to be disappointing. Which, ironically, may make them more palatable to legislators on the fence.

Meanwhile, Log Cabin Republicans continues its court-based assault on the policy. (Merc)

On Friday, Log Cabin Republicans filed a motion with the 9th U.S. Circuit Court of Appeals for an expedited schedule. It would put the case on track for oral arguments in April.

In response to LCR’s court win declaring DADT to be unconstitutional, the Military implemented new rules requiring that no person could be discharged under DADT without ”personal approval of the secretary of the military department concerned, and only in coordination with [Secretary Gates] and the General Counsel of the Department of Defense.”

Unsurprisingly, this has proved to be a virtual moratorium on the application of the policy (WaPo)

No U.S. service members have been discharged for being openly gay in the month since the Defense Department adopted new rules surrounding the “don’t ask, don’t tell” policy, a Pentagon spokeswoman said Monday.

Increasingly, it looks evident that this policy will soon be gone. And increasingly it looks as though Senator John McCain, after a long contribution to his country, will be most remembered as a man who, in the waning years of his service, frittered away his influence by cantankerously clinging to prejudices and fighting against the coming of a world that was already there.

Supremes refuse to lift stay on DADT injunction

Timothy Kincaid

November 12th, 2010

After Judge Phillips found that the Military’s Don’t Ask, Don’t Tell policy violated the constitutional rights of gay soldiers, she issued an injunction requiring the Military to cease enforcement of the ban on service by openly gay men and women. The Ninth Circuit Court of Appeals placed a stay on the injunction until the case could be heard in appeal.

Log Cabin Republicans (the plaintiffs in the case) requested that the Supreme Court lift the stay and today they responded by denying that request. (Fox)

Kennedy’s order simply said, “the application to vacate the stay entered by the United States Court of Appeals for the Ninth Circuit on November 1, 2010, presented to Justice Kennedy and by him referred to the Court is denied.” The order also noted that Justice Elena Kagan, who until this summer was Solicitor General, didn’t take part in the case.

This is not surprising and says little about the attitudes of the various justices about the constitutionality of the law. But if Kagan recuses herself from the case, that is one vote that was likely to be favorable that is now out of the count.

Log Cabin appeals to Supremes

Timothy Kincaid

November 5th, 2010

Earlier this week, the Ninth Circuit Court of Appeals granted the Administration’s request to put a permanent stay on Judge Phillips’ ruling which found the Don’t Ask, Don’t Tell policy to violate the US Constitution. The Military will be able to continue to discharge gay and lesbian servicemembers until such time as the Appeal is determined.

Log Cabin Republicans didn’t accept that decision as final and have instead filed an emergency request to have the stay lifted. (CNN)

The Log Cabin Republicans filed an emergency request with the nation’s highest court to reverse the Ninth Circuit Court of Appeal decision to allow the military to continue with “don’t ask, don’t tell,” while the government appeals the lower court ruling that the law is unconstitutional.

The high court appeal– “called an “application” — is now in the hands of Justice Anthony Kennedy. He will likely ask his eight colleagues to help him decide and order the federal government to weigh in with its views before a decision is made.

Alternately, Kennedy could decide on his own. In any case, while continuing the stay may say nothing about the ultimate position of Supreme Court Justices, a lifting of the stay could tell us a great deal.

Filing after the break

Read the rest of this entry »

Ninth Circuit stays DADT Injuction during appeal

Timothy Kincaid

November 1st, 2010

The Ninth Circuit Court of Appeals has extended its temporary stay on the injunction against the operation of the Military’s Don’t Ask, Don’t Tell policy. (Forbes)

A federal appeals court in San Francisco has indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy.

The panel granted the government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

Pentagon Releases Revised DADT Guidance

Jim Burroway

October 21st, 2010

Chris Geidner reports that, in reaction to yesterday’s temporary stay by the Ninth Circuit Court of Appeals of an injunction prohibiting the enforcement of “Don’t Ask, Don’t Tell,” the Department of Defense has issued revised guidelines on the policy’s enforcement:

Until further notice, pursuant to a memorandum from Defense Secretary Robert Gates and a follow-up memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, no service member can be discharged under DADT without the ”personal approval of the secretary of the military department concerned, and only in coordination with me and the General Counsel of the Department of Defense.”

The Court of Appeals will decide sometime after October 25 whether to make their stay permanent for the duration of the appeals process. A senior DoD defense lawyer, noting the temporary nature of the stay, concedes that “We are clearly in a legally uncertain territory.”

It is unclear how this new memorandum will affect recent enlistments of LGBT people into the military.

Ninth Circuit Court Stays DADT Injunction

Jim Burroway

October 20th, 2010

I’ll bet you just had a feeling that this was too good to last, didn’t you? The Ninth Circuit Court of Appeals has granted the Justice Department’s request for a temporary stay of a lower court’s injunction ordering the Defense Department to halt all enforcement of “Don’t Ask, Don’t Tell.”

In a very brief order, Justices Diarmuid O’Scannlain, Stephen S. Trott and William A. Fletcher wrote (PDF: 24 KB/1 page):

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

“Appellee” here are Log Cabin Republicans, which brought the successful suit against the U.S. government in which Federal District Judge Virginia A. Phillips declared DADT unconstitutional. This is a temporary stay, allowing the court time to consider whether there should be a longer-term stay for the duration of the appeal.

It’s unclear what immediate effect this stay will have. Chris Geidner points out that the Defense Department memorandum requiring compliance with the injunction states (PDF: 96KB/1 page):

In the interim, the Department of Defense will abide by the terms of the injunction. It is possible that a stay of the injunction could be issued very soon, perhaps in a matter of days. In that event, I will issue additional guidance.

In other words, DADT remains suspended until the Defense Department issues a new memorandum. If a longer-term stay is granted sometime after October 25, then the Defense Department will probably issue a new memorandum requiring enforcement of DADT again for the duration of the appeals process. That process will likely take the better part of a year.

Update (Oct 21): A new memorandum may come sooner than first thought:

The Pentagon says it’s working to come up with new guidelines regarding gays serving in the military after a court ruling restored the “don’t ask, don’t tell” law, at least for now. Defense Department spokesman Col. Dave Lapan said Thursday that he expects the guidelines be announced later in the day.

Justice Dept. Files Emergency DADT Stay Request With 9th Circuit

Jim Burroway

October 20th, 2010

The Justice Department today has filed an emergency request with the Ninth Circuit Court of Appeals, asking that the court issues a stay of U.S. Federal District Judge Virginia A. Phillips’ injunction preventing the Defense Department from enforcing “Don’t Ask, Don’t Tell.”

In today’s filing (PDF: 156 KB/25 pages, via Politico), the Justice Department argues that “if not stayed immediately, the district court’s order precludes the administration of an Act of Congress and risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.” The Justice Department then asks:

We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.

In giving the reasons for requesting the stay, the Justice Department repeats the reasons they gave to the District Court, except this time they chose to omit the “evidence” of the Rolling Stone interview with President Barack Obama, which Judge Phillips derisively dismissed as “hearsay.” The Justice Department argues:

The worldwide injunction also threatens to disrupt the ongoing efforts to fashion and implement policies to effect any repeal of § 654 in an orderly fashion. The President strongly supports repeal of the statute that the district court has found unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. Although the Administration has called for a repeal of the statute, it has made clear that repeal should not occur without needed deliberation, advance planning, and training. To that end, the Secretary of Defense established the Comprehensive Review Working Group, which is currently nearing completion of a comprehensive review of how best to implement a repeal of § 654. The Working Group has visited numerous military installations across the country and overseas, where it has interacted with tens of thousands of servicemembers on this issue. The Working Group has also conducted an extensive, professionally developed survey that was distributed to a representative sample of approximately 400,000 servicemembers. An abrupt, court-ordered end to the statute would pretermit the Working Group’s efforts to ensure that the military completes development of the necessary policies and regulations for a successful and orderly implementation of any repeal of § 654. The significant impairment of the Department’s efforts to devise an orderly end to the statute would cause irreparable harm.

Meanwhile, the Pentagon has complied with the injunction barring enforcement of “Don’t Ask, Don’t Tell.” Former New York Guardsman Lt. Dan Choi yesterday successfully re-enlisted in the U.S. Army at a recruiting station in New York, while the Pentagon has announced that they have called a halt to all ongoing discharge procedures underway under DADT.

Karen Ocamb puts it nicely:

Obama, the DOJ and the Pentagon should acknowledge that DADT is broken and unfixable like Humpty Dumpty.

Pentagon Orders Recruiters To Accept Gay Applications

Jim Burroway

October 19th, 2010

The Associated Press is reporting that the Pentagon has issued new guidance to recruiting offices in the wake of last week’s injunction barring enforcement of “Don’t Ask, Don’t Tell”

Spokeswoman Cynthia Smith said Tuesday that top-level guidance has been issued to recruiting commands informing them that the military’s “don’t ask, don’t tell” rule has been suspended for now. Recruiters also have been told to inform potential recruits that the moratorium could be reversed at any point.

It’s important to pay close attention to that last point. If the lower court’s finding that DADT is unconstitutional is overturned on appeals, the law would go right back into enforcement, and those who declare that they are gay will be subject once again to discharge under DADT. The Justice Department has already indicated that they intend to appeal the decision. That’s why Congressional repeal is still so important.

Last week, the Defense Department announced that they have called a halt to all DADT discharges for the duration of the injunction.

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.

Defense Dept Ends All DADT Discharges

Jim Burroway

October 14th, 2010

Even though the Justice Department has announced that they intend to appeal the Federal Court ruling that declared “Don’t Ask, Don’t Tell” unconstitutional while filing for a stay in the injunction prohibiting its enforcement, the Defense Department has announced that they will bring to immediate halt to all DADT discharges while the case is on appeal.

“Earlier today, the staff judge advocate generals from the military services, in consultation with the Office of the Secretary of Defense Office of General Counsel, sent to their service staff judge advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 United States Code 654, commonly known as the ‘Don’t Ask, Don’t Tell’ statute,” Pentagon spokesman Marine Col. Dave Lapan said in a written statement.

This builds on news from earlier that the Air Force had announced that they would no longer discharge servicemembers under DADT.

Justice Dept Asks for Stay of Injunction on DADT, Declares Intent to Appeal

Jim Burroway

October 14th, 2010

The Justice Department today filed an application (PDF: 16 KB/3 pages) before U.S. Federal District Judge Virginia A. Phillips, asking that the injunction ordering the immediate suspension of the enforcement of “Don’t Ask, Don’t Tell” be lifted. The primary objections to the injunction was outlined in a declaration (PDF: 1.4MB/48 pages) by Under Secretary of Defense for Personnel and Readiness Clifford L. Stanley. The Under Secretary is responsible for personnel policy decisions in the Defense department, and he is a member of the Defense Department’s working group assessing the impact of DADT’s repeal and developing the plan for implementing the repeal.

Stanley asks the Judge to set aside the injunction because, since the administration intends to appeal the decision, “the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas.” Stanley says that the working group has determined that the magnitude of the impact of repealing DADT is too great to be undertaken on short notice. Instead, he says that an immediate injunction stands in the way of President Barack Obama’s call for the repeal to be implemented in “an orderly way.”

Stanley describes the tasks that the working group has identified in order to end the enforcement of DADT. They essentially break down into two areas:

  • Implement changes to written policies and DoD regulations “to address the issues associated with repeal and to mitigate any potentially negative impacts repeal may have.”
  • Develop tools and training for the leadership and servicemembers. Stanley complains, “It will be difficult, if not impossible, to provide timely education to forces engaged in combat operations.”

It’s that second point that forms the main part of Stanley’ argument. He warns such training for all levels of service is essential to avoid a chaotic transition:

It is important to keep in mind that thousands of military personnel have enforced the DADT policy for many years. Any change to the policy will require that these personnel receive training and instruction in a number of areas, including: (i) how the policy has changed; (ii) why the policy has changed; (iii) how the change in this policy affects other existing policies; (iv) appropriate treatment of gay and lesbian servicemembers who reveal their sexual orientation; (v) appropriate treatment of servicemembers who object to serving with servicemembers they know to be gay or lesbian; and (vi) principles to consider when handling other issues that may arise the elimination of the DADT policy. Thus, it is not simply a matter of saying that a particular statute shall no longer be enforced.

Stanley also states that the injunction places LGBT servicemembers and the DoD under great uncertainty on how to act during the repeal process:

The military also should not be required to restructure military policy and law during the pendency of the Government’s appeal. If the Court’s judgment is overturned on appeal, and Congress has not since repealed the statute, the Department of Defense will be obligated by statute to reinstate DADT. Removing and then reinstating DADT will be extremely disruptive, as well as unduly costly and time-consuming, particularly at a time when this Nation is involved in combat operations overseas.

Enjoining the operation of the statute before any appeal is concluded, moreover, would place gay and lesbian servicemembers in a position of grave uncertainty. If the Court’s decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court’s decision and injunction.

Stanley warns that “an abrupt change – without adequate planning or time to implement a plan – substantially increases the probability of failure or backlash in the early months of this transition, months that will be critical to our long-term success.” Later, he reiterates:

If the DADT policy is eventually abolished, the military will only get one chance to implement the change. For a change of this magnitude, the initial stages are extraordinarily important to the long-term success of the project. That is one reason why the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have emphasized the need for careful planning of this transition. A poorly implemented transition will not only cause short-term disruption to military operations, but will also jeopardize the long-term success of the transition. Either outcome would irreparably harm our military and the national security of the United States.

Log Cabin Republicans, who brought the successful suit against the government in Federal Court, pledged to fight the Administration’s application:

We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘Don’t Ask, Don’t Tell’ while at the same directing his Justice Department to defend this unconstitutional policy,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans. “Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic gays and lesbians are serving in our armed forces to fight for all of our constitutional rights while the government is denying them theirs.”

Christian Berle, Deputy Executive Director of Log Cabin Republicans, also urged Senate Majority Leader Harry Reid to bring DADT’s repeal back up for a vote during the lame duck session following the November election.

Air Force stops enforcing DADT

Timothy Kincaid

October 14th, 2010

From the AP

The Servicemembers Legal Defense Network circulated an e-mail on Thursday that it says was written by the Air Force’s Judge Advocate General Richard Harding. In that e-mail, Harding says the Defense Department “will abide” by a court order that says the military can no longer discharge service members who are openly gay.

Meanwhile, some in the Pentagon are all in a tither about what to do. Why, it could have “enormous consequences”. So, as a service to my nation, I offer the following Q&A.

Q: How do we administer the change???

A: Put any current investigations in the shredder.

Q: But where will the gay soldiers sleep?

A: In the bunk they’ve been sleeping in.

Q: But what about the homophobic soldiers? Don’t they get to make any input?

A: They get the exact same input as to where they will be shipped, what uniforms to wear, and whether they will serve with people of other races.

Q: But the public, what about the public?

A: The public really and truly couldn’t care less.

And if they have any more concerns, I’m sure there’s still room on my post-it note.

Judge orders immediate end to DADT

Timothy Kincaid

October 12th, 2010

Judge Phillips has responded positively to Log Cabin Republicans’ request for an immediate and worldwide injunction against the military’s anti-gay Don’t Ask, Don’t Tell policy (CNN):

A federal judge ordered Tuesday that the U.S. military stop enforcing the “don’t ask, don’t tell” policy.

Judge Virginia Phillips ordered the military “immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced” under the “don’t ask, don’t tell” policy.

Updates (Jim Burroway): Log Cabin Republicans, who brought the successful lawsuit to federal court, cautioned servicemembers against coming out at this time, since the Justice Department still has sixty days in which it can appeal.

White House press secretary Robert Gibbs told The Advocate that he didn’t know whether the Administration would seek a stay of the ruling. He also didn’t know if any steps had been made to bring the Pentagon into compliance with the injuinction. Instead, he said, “, nor did he know if any steps have been taken to bring the Pentagon into compliance with the injunction. Gibbs said, “The president will continue to work as hard as he can to change the law that he believes is fundamentally unfair.” It seems to me that Judge Phillips already took care of that task. 

Here is the full text of the injunction:

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
This action was tried by Judge Virginia A. Phillips without a jury on July 13-16 and 20-23, 2010. The Court filed a Memorandum Opinion on September 9, 2010 (Doc. 232), and an Amended & Final Memorandum Opinion, and Findings of Fact and Conclusions of Law, on October 8, 2010. For all the reasons set forth therein, the Court:

(1) DECLARES that the act known as “Don’t Ask, Don’t Tell” infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.

(4) GRANTS Plaintiff Log Cabin Republicans’ request to apply for attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

(5) GRANTS Plaintiff Log Cabin Republicans’ request to file a motion for costs of suit, to the extent allowed by law.

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