A few thoughts on LCR v. US
September 10th, 2010
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.
Utah GOP selects Log Cabin leader as candidate
September 2nd, 2010
To run for State Senate in Utah, you need to file certain disclosures by a deadline. If you do not, you are disqualified and the state party can pick a new candidate. (Pride in Utah)
The time limit expired last night on Ben McAdams’ Republican opponent Nancy Davis to file her disclosures and she was forced out of the race. In these unlikely circumstances, the Republican Party is allowed to nominate their own candidate to automatically run without going through the delegate system. You won’t believe who they picked.
Of all people… Melvin Nimer, the President of the Utah Log Cabin Republicans and board member of the Utah Pride Center.
Ben McAdams, the Mormon Democrat currently holding the office, is supportive of the community and a reliable ally. His predecessor in the 2nd District was gay.
It’s difficult to know just what prompted the Republican Party to pick a gay candidate. Perhaps they figure that a gay man has a better chance in the district, and they like winning more than they oppose gay rights. Or perhaps it was pure tokenism, tossing an impossible seat to the gay guy; yet this is a token that Utah Republicans have not traditionally considered.
Regardless of the reason, this is very unexpected and very welcome.
Utah Gov. hosts Log Cabin
August 11th, 2010
Utah Governor Gary Herbert will be hosting a private reception for Log Cabin Republicans, a gay rights group, later this month. Herbert, a Republican and a Mormon, had spoken against a non-discrimination proposal last year but this announcement may be an evidence of both the party’s and the church’s softening attitudes over the past couple of years.
Within the past few years, at least six Utah cities have passed discrimination protections – with the support of the Mormon Church. This may be the silver lining that resulted from the exposure of the church’s involvement in California’s Proposition 8.
Let’s hope that Log Cabin can continue to help build inroads into the administration and elicit support for some of the provisions that are expected to be brought up in the legislature within the next year. But even absent any specific tangible advance, this is a positive step. History shows us that exposure to gay people and hearing our concerns can be the strongest contributor to change.
Why the Cornyn meeting matters
This commentary is the opinion of the author and does not necessarily reflect those of other authors at Box Turtle Bulletin
July 30th, 2010
No one does homophobia like a Texas Republican. This year’s party platform is so ragingly anti-gay that it looks like it could have been drafted by any of the colorful people who make a living off of scaring folks about The Homosexual Agenda.
So, then, why is Texas Senator John Cornyn speaking at a fundraiser for the Log Cabin Republicans, a gay group? And, more importantly, what does this say about the current and future state of gay politics within the Republican Party?
For many conservative Republicans, Log Cabin is seen as an enemy to the Party. They are not “real” Republicans but rather (in the words of American Family Association’s Robert Knight) a Trojan Horse:
“It’s important to understand that the Log Cabin Republicans aren’t really a Republican group; they’re a group of homosexual activists who are inside the Republican Party, trying to neutralize the party on the issue of homosexual activism,” he explains. “It’s sort of a voluntary disarmament that they’re advising the Republicans to undertake.”
And for some Republicans, an organization of gay Republicans is no more valid than a club of Republican murders or Republican pedophiles. They would no more acknowledge Log Cabin’s existence than they would of the Republican Socialists Club – it’s an impossible contradiction in terms.
Conservative Republicans – or more accurately, purist Republicans – have long pretended that LCR didn’t exist. And when they did mention the group, it was as an illustration of Who We Are Not Like or in mockery. The term RINO (“Republican In Name Only”) is often applied as a slur against fiscally conservative people who didn’t follow the party’s social agenda.
And this is why it is important that Log Cabin receive official recognition from ranking officials within the Party and by Party structure. As the chairman of the National Republican Senatorial Committee, Cornyn’s presence provides authentication, it says “you are real Republicans.” It says that Robert Knight is wrong, the disagreements between Cornyn and Log Cabin are defining.
And that is a very important acknowledgment. And it adds to a process that is changing the dynamic. Instead of being outsiders, vile scum whose opinions do not even matter (who cares what a rapist has to say?), gay Republicans are becoming family with whom they do not agree. Instead of being dismissed out of hand, your voice can be heard even if it does not immediately persuade change.
And, even more importantly, it sends a message to moderate members of the party that being friendly with gay activists is not political suicide. It says that you can consider pro-gay perspectives and still be considered “a good Republican”. (And I think that we have been seeing this for a while without giving it proper attention).
What will this do on a personal level? Will this shift Cornyn’s opinions or votes? Probably not. But it may change his future language.
Will this result in a change in policy? Probably not. But it may make it less easy for the American Family Association to make wild claims about “what gays are like”. And it may make it more acceptable for rogues to “just disagree” with the party position and support our community on some issues.
Our community says over and over and over that coming out is the most important thing to bring about social advancement. Nothing changes minds more than exposure to a real living gay person whom you like.
And that is also true in politics. Nothing – absolutely nothing – will change Republican Party positions on gay issues more quickly or more effectively than being exposed to gay people. And that is why this is such a tremendously important step.
LCR v. DADT closing arguments go well
July 23rd, 2010
Closing arguments in the Log Cabin Republicans’ challenge to the Military’s Don’t Ask, Don’t Tell policy finished up today. Judge Phillips had announced that the Witt precedent would be used to determine what level of proof would be required and Dan Woods, for LCR, presented evidence and testimony accordingly. (National Law Journal)
Last month, Phillips set forth the standard of proof that both sides had to meet. She based it on the U.S. Court of Appeals for the 9th Circuit’s 2008 decision Witt v. Dep’t of the Air Force — that the policy is necessary to advance a legitimate governmental interest.
On Friday, Woods maintained that the policy served no such interest.
“Lawrence established that Americans have a constitutional right to engage in private, consensual homosexual conduct,” Woods said, citing the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, where the court found that state’s criminalization of private, consensual sodomy unconstitutional. “Don’t Ask, Don’t Tell infringes on that right, punishing individuals who engage in a constitutionally protected activity.”
During the trial, Woods introduced numerous reports and expert witnesses who concluded that the policy has done little to maintain troop cohesion. In fact, he said, the evidence showed that the policy disproportionately harmed women and noncombat service members. He noted that service members work alongside foreign militaries and private contractors, both of which permit open homosexuality.
“Our military will give a convicted felon a gun, but will not give a gay guy a typewriter,” he said.
Assistant U.S. Attorney Paul Freeborne, defending the policy, decided that arguing with the judge was a better way to make his case.
Freeborne responded that the due process and First Amendment claims fail “as a matter of law” because the Log Cabin Republicans brought a facial challenge to the constitutionality of the policy. That requires both parties to focus on the face of the statute and its legislative history — not the experiences of individuals, he said.
Phillips interrupted, disagreeing about the scope of the court’s review.
“The government’s argument it has made throughout this case and on which it has relied to contest the admission of nearly every exhibit, and most of the testimony, overlooks that the court is directed to look at the effect of the challenged statue,” Phillips said.
Freeborne said he would “respectfully disagree” with that analysis. He also disagreed that the Witt standard, which dealt with the circumstances of a single service member and not the statute as a whole, was appropriate in a facial challenge.
In defending the statute against First Amendment claims, Freeborne used the example of a witness who was not discharged even after coming forward about being hazed and harassed about his homosexuality.
“After enduring it for months,” Phillips replied.
While this sounds encouraging, we cannot assume that the judge will rule in our favor. But by all accounts, the testimony and arguments went well.
Log Cabin has asked Judge Phillips to impose an injunction halting the military’s unconstitutional “don’t ask, don’t tell” policy and, if appealed, to suspend the policy during appeal. That would be the best possible outcome of the trial at this level.
First hand report from the Log Cabin v. DADT trial in Riverside
July 22nd, 2010
I hope Karen Ocamb and LGBT POV will forgive me for lifting so much from Tom Carpenter’s excellent summary of the trial, but it is so concise and clear that I just couldn’t edit it. Tom is a lawyer and a board member of the Servicemembers Legal Defense Network.
The White and Case lawyers [representing LCR] have really outgunned the government and they have put on an excellent case.
I saw the end of fellow Naval Academy grad Jenny Kopfstein’s testimony and she brought tears to my eyes.
She was followed by Larry Korb who qualified well, and as a Reagan DOD Assistant Secretary of Defense was very impressive. His testimony was clear that DADT was wrong when it became law in 1993 and has reduced military readiness and retention, as well as unit morale and cohesion. The government didn’t lay a glove on him and he was able to take on the lawyer who was cross examining him. As a trial lawyer, he made me feel sorry for the young lawyer who was clearly out of his league.
Alex Nicholson, the executive director of Servicemembers United and named plaintiff, was next. He was his usual articulate self and very skillfully turned the questions on the government lawyer who was attempting to cross-examine him. The only hit he took was when the government had him admit he was only on active duty for 9 months and never received an Military Occupational Specialty as a linguist or human intelligence gatherer. Not much.
Alex was followed by Dr. Allan Okros, a retired Canadian 0-6 who has worked for the military in uniform or as a civilian for 33 years. He is an expert on personnel issues and was a contemporary of Charlie Moskos, the father of DADT. He testified about the cultural and ethical similarities between the Canadian Forces and the US. He described the lifting of the ban in Canada as a “nonevent.” Based upon that experience, he testified that, with proper leadership, the result would be the same in the US. He is one of the best experts I have seen on gays in the military.
The last witness I saw was Tony Leverde a former USAF SSgt. He testified about what it was like to not hide your sexual orientation at the same time as not violating DADT. He was respected by his peers and subordinates, most of whom knew or suspected he was gay, even though he never admitted it. He was able to testify over objection that his honesty and being himself actually improved his relationship with fellow service members and enhanced unit morale. Didn’t see his cross but from watching the Judges reaction she seemed impressed.
Today was closing arguments, and a judgment could come in a few months, well before Congress and the review committee and the President and the Chairmen of the Joint Chiefs decide at some unspecified time in the future that the Military may possibly be ready to allow gay men and women to serve openly.
LCR v. DADT testimony begins
July 16th, 2010
From the AP
Former Air Force Maj. Michael Almy took the witness stand to support a federal court lawsuit filed by a Republican gay rights organization challenging the constitutionality of the military’s ban on openly gay troops.
Almy said he had been honored as a top communications officer in the Air Force for his leadership skills in running an exemplary unit that helped maintain control over the vast majority of Iraq’s air space during the war.
After his tour, he returned to his base in Germany where he was called to his commander’s office and questioned about a dozen personal e-mails he said the Air Force discovered after a service member searched through his computer in Iraq.
Almy said his commander tried to force him to admit he had violated the “don’t ask, don’t tell” policy.
“We went round and round for approximately 20 minutes,” Almy testified.
Almy said he never admitted to the military he was gay and was careful to keep his personal life separate from his professional one. Still, after the meeting, Almy was told he was relieved of his duties.
Ya know, I feel bad for the person who signed up the defend their country only to find them self assigned to snoop through other people’s private email looking to make sure they are all to people of the right gender. Who wants that job?
Log Cabin v. DADT case begins
July 13th, 2010
Today Log Cabin Republicans’ lawsuit against the federal government over the Don’t Ask, Don’t Tell policy went began. And the opening statement reveal an interesting approach. Log Cabin will argue that the policy is unconstitutional, while the administration will counter with, ummm, nothing at all. (AP)
Woods said he plans to use the remarks of Obama, Defense Secretary Robert Gates and other top military commanders as evidence the policy should be overturned.
Woods argued the policy violates the rights of gay military members to free speech, due process and open association.
“If they wish to serve in our armed forces, homosexuals must conceal the core of their identity, they must lie — in violation of their honor and duty,” Woods said. “Our military excludes these men and women from service solely on the basis of status and conduct that is constitutionally protected.”
U.S. Department of Justice attorney Paul G. Freeborne said that the government will present only the legislative history of the policy and no witnesses or other evidence during the trial. Their defense consists only of insisting that the policy is in the process of being repealed and the court is overstep its bounds to hear the case at all.
U.S. District Judge Virginia A. Phillips decided that the “possibility that action by the legislative and executive branches will moot this case is sufficiently remote.” Sadly, she may be right. Until the legislation is voted through by the Senate, clears reconciliation, is signed by the President, and then the policy change is deemed by both the administration and the military to be sufficiently non-disruptive, there is no repeal.
I am appreciative that the administration is not seeking to argue from the perspective of bigotry or the presumption of heterosexual superiority and is presenting no substantive defense. Perhaps they should consider this approach for all discriminatory anti-gay legislation they feel they have an obligation to defend.
The usefulness of Georgia Log Cabin Republicans
June 12th, 2010
Two Republican gubernatorial candidates in Georgia are playing the ‘Who Hates Gays More’ game. Each is declaring that they are the more conservative because the other momentarily on some issue at some time may have taken anything other than a Kill ‘Em attitude.
Yes, Georgia Republicans are a pretty nasty group of people. But one of the more amusing parts of this battle is also an illustration of how Log Cabin, the gay Republican group, can be useful.
I’m sure that by now some of you have already thought up an angry denunciation of the group, and a few have already typed it. This is not a particularly rare attitude in our community. In fact, last night an acquintance told me, “I hate Log Cabin Republicans! I hate them!” If I respected his opinion, I might have argued, but I don’t give much attention to people who start sentences with “I hate.”
But for those who have a healthy skepticism about Log Cabin, take this story into consideration:
In 2002, Karen Handel was running for Fulton County Commission. Log Cabin approached her and she expressed support for some gay issues.
But that’s all fine and good in Fulton County. Now that Handel is running for a statewide office, she is claiming that she never ever supported domestic partnerships. No sirree, she’s a true-blue homophobe and how dare her opponent suggest otherwise.
But here’s where Log Cabin proves it’s usefulness.
But e-mails sent from Handel’s account in 2002 to the head of the Georgia Log Cabin Republicans appear to tell a different story.
“I do support domestic partner benefits, and confirm my position here,” Handel wrote to Marc Yeager on July 29, 2002.
Yeager provided copies of his e-mails with Handel to The Associated Press and several other media outlets.
Handel said the e-mail was actually written by Matt Montgomery, the campaign manager in the Fulton County race, and that it misstated her position.
“I never had any kind of idea or feeling that I was communicating with someone other than Karen,” Yeager told The AP.
Handel, he said, also told him in conversations that she supported domestic partner benefits. He’s convinced her position on the issue has changed with her political aspirations. Fulton County is home to a large and politically active gay community. Voters that are critical to winning a race there can be a liability in a statewide contest.
There are other organizations with other partisan alliances who would have looked at the situation and said, “oh, but she’s actually more supportive in private so we’ll cover for her.” We see that all the time with certain segments of Gay, Inc.
But I appreciate that Marc Yeager and Log Cabin Georgia did not. They approached her in a Republican setting, got her on record, tied it down in email, and exposed her hypocrisy when she tried to backtrack. And that is something that really only a gay Republican group could have done.
And I like it when our community says, “hey, we’re not going to be used.” And the obsession with who is more bigoted than the other can only drive independents and moderates – assuming such a thing exists in Georgia – away from whoever wins the primary.
President Obama rebutted by his own Justice Department on DADT
April 13th, 2010
The Log Cabin Republicans are the plaintiffs on one of the few active cases opposing the legality of the Military’s Don’t Ask, Don’t Tell policy. And they have developed approaches that other plaintiffs more sympathetic to the President might not have employed.
One method was to try and establish that the Justice Department’s arguments were in direct contradiction with positions articulated by the President. This two-pronged approach either leaves the DOJ without much defense for an obviously discriminatory law, or embarrasses and pressures a President who is increasingly seen as having campaigned on promises that he has little interest in keeping.
And yesterday they were successful.
Log Cabin had been attempting to get the DOJ to answer yes or no questions so as to be on the record about whether the policy was bad for national defense. Obviously, if the Justice department admits that the policy is counter-productive, then there is little basis to defend it. So the DOJ fought having to answer.
But finally, after a direct order from the judge, they have stated their opinion. And their Response to Request for Admissions admits that the Obama Administration’s Department of Justice is basing their defense on arguments that completely contradict statements made by President Obama both in meetings with the gay community and in his State of the Union address.
They try to quibble that the Executive and Legislative Branches are in disagreement. They state that they are compelled to defend the law even if the Executive wishes it repealed.
And that may be correct. But they are not compelled to take specific factual conclusions that are contradictory to those espoused by the Executive Branch and yet that is exactly what they are doing.
The President of the United States, who formulates the policy of the Executive Branch, has stated, including in his State of the Union Address on January 27, 2010, that 10 U.S.C. § 654, the statute enacting “Don’t Ask Don’t Tell” (“DADT”), should be repealed. The President has further said that DADT does not contribute to, and indeed weakens our national security, and he has stated that “[w]e cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford – for our military’s integrity – to force those willing to do so into careers encumbered and compromised by having to live a lie.”
But nonetheless, their answers are:
3. Admit that DAD’T does not contribute to our national security.
4. Admit that DADT weakens our national security.
5. Admit that discharging members pursuant to DADT weakens our national security.
As a matter of legal fact, the Obama Adminstration’s Department of Defense has stated that the President was not speaking the truth. As Dan Woods, a partner at White & Case, Log Cabin’s law firm put it
Using President Obama’s exact words, Log Cabin’s lawyers then asked the government to admit that what the President said was true. Justice Department lawyers objected, Log Cabin filed and won a motion to compel the government to answer the questions, the government appealed, and the court rejected the appeal. Consequently, on Monday, April 12, 2010, the government finally had to answer the questions and, when the Justice Department lawyers answered, they denied the truth of what the President had said.
This puts the President in a difficult position. He is talking out of both sides of his mouth. His Department of Justice speaks for him. It makes legal arguments that are consistent with the principles and factual conclusions of his administration.
Which is it, Mr. President?
Reason for DADT comment: pressure, not encouragement
February 1st, 2010
The New York Times has an article about President Obama’s pledge to reverse Don’t Ask Don’t Tell, the anti-gay Military policy, in which they report the impetus for movement on the issue:
President Obama and top Pentagon officials met repeatedly over the past year about repealing “don\’t ask, don\’t tell,” the law that bans openly gay members of the military.
But it was in Oval Office strategy sessions to review court cases challenging the ban — ones that could reach the Supreme Court — that Mr. Obama faced the fact that if he did not change the policy, his administration would be forced to defend publicly the constitutionality of a law he had long opposed.
It is interesting that the President’s timing was not swayed by encouragement from gay supporters, but rather as a result of legal actions of a gay group hostile to the administration. Although the Times does not note it, the only lawsuit against DADT which is currently advancing is Log Cabin Republicans v. United States of America. (Update: The Log Cabin case is, I believe, the only organizational case. There is at least one other individual case.)
Log Cabin, an organization of gay Republicans, will not shade their press releases about their lawsuit in a way that is favorable to the administration or in a way that provides cover. They do not get invited to Obama White House cocktail parties, have access to administration insiders, or have anything else to lose. Nor do they feel constrained by any desire to protect the Democratic Party.
I think that as much as the administration wants to avoid defending constitutionality, they really want to avoid the negative publicity that defending this unjust policy could bring. At it must be especially galling that those accusing the President and his administration of being anti-gay are are group of Republicans.
Log Cabin’s Fight Against DADT Goes Forward
July 1st, 2009
In a split ruling, a federal court determined that Log Cabin Republicans could proceed with their lawsuit challenging the Don’t Ask Don’t Tell law. (pdf, 24 pages)
On June 9, 2009, Judge Virginia A. Phillips of the Central District of California denied the U.S. Government’s attempt to dismiss Log Cabin Republicans’ lawsuit challenging the U.S. military’s ‘Don’t Ask, Don’t Tell’ policy as unconstitutional.
After a 4 1/2 year process, this case is moving forward.
The Court has scheduled a hearing for July 6 to discuss, in detail, the scope of discovery and a schedule for the case going forward.
McCain Advisor Announces Support for Marriage
April 17th, 2009
In September of last year we noted that Steve Schmidt, John McCain’s top campaign advisor, had sought to encourage Log Cabin Republicans (a gay Republican group) at the National Republican Convention.
Today he has made headlines by telling the Log Cabin annual national convention that he endorses gay marriage and will be encouraging Republican leaders to drop anti-gay positions.
It can be argued, although I disagree, that marriage should remain the legal union of a man and a woman because changing it to admit same sex unions would undermine the most basic institution of a well ordered society. It can be argued according to the creeds and convictions of religious belief, which I respect. But it cannot be argued that marriage between people of the same sex is un-American or threatens the rights of others. On the contrary, it seems to me that denying two consenting adults of the same sex the right to form a lawful union that is protected and respected by the state denies them two of the most basic natural rights affirmed in the preamble of our Declaration of Independence – liberty, and the pursuit of happiness. That, I believe, gives the argument of same sex marriage proponents its moral force.
There is a sound conservative argument to be made for same sex marriage. I believe conservatives, more than liberals, insist that rights come with responsibilities. No other exercise of one\’s liberty comes with greater responsibilities than marriage. In a marriage, two people are completely responsible to and for each other. If you are not willing to accept and faithfully discharge those responsibilities, you shouldn\’t enter the state of matrimony, and it doesn\’t make a damn bit of difference if you\’re straight or gay. It is a responsibility like no other, which can and should make marriage an association between two human beings more fulfilling than any other.
For those who come from a conservative perspective, Schmidt’s speech is a joy to read.
Log Cabin’s convention this year is a bit of a McCainapalooza as in addition to Schmidt, the candidate’s wife Cindy and daughter Meghan will be hosting a reception for major donors tonight. Meghan McCain will also be headlining tomorrow night’s dinner.
Huckabee vs. Coulter: “I’m More Anti-Gay Than You”
January 12th, 2009
This is what the far right has sunk to: who is more anti-gay?
Is it any wonder that nine out of ten nine-Evangelicals think Christianity is “too anti-homosexual” — and 80% of Christians of all stripes agree?
But this kind of debate is going on as a man who says out loud that being gay is a “compulsion” like kleptomania and likens gays to barnyard animals is running to head the Republican Party. At least he appears to be pulling ahead of Chip “Barack the Magic Negro” Saltsman for the time being. Meanwhile, the Log Cabin Republicans are in serious financial straits, which means that the one Republican voice for gay issues will be weaker in 2009.
The self-destruction of the Grand Old Party continues.
NY Senate Leader Speaks at Log Cabin Fundraiser
September 17th, 2008
Dean G. Skelos, the NY State Senate majority leader, attended a Log Cabin fundraiser in effort to broaden his party’s appeal for the fall elections. Although he reiterated his opposition to same-sex marriage, he indicated that he would be more supportive of gay issues than had been his predecessor. (NY Times)
Mr. Skelos, of Long Island, said he would take up and pass legislation aimed at preventing bullying of gay and lesbian students in schools. The predominantly Democratic Assembly has passed such legislation for several years, but it has long been stalled in the Senate. This month, New York City put similar rules in place for its schools.
The event was also attended by the the state chairman of the McCain-Palin campaign along with several Republican Assembly members who last year had voted in support of marriage equality.