Box Turtle Bulletin

Defense Appropriations does not get cloture – focus turns to LCR case

Los Angeles Times:

The measure repealing the military policy banning gays from serving openly was part of the 2011 Defense authorization bill. Democrats tried to bring up the bill for consideration but failed to get the 60 votes necessary to overcome determined GOP-led opposition. Supporters voted 56-43 in favor of starting debate on the Defense bill, short of the 60 needed.

From what I was able to hear of the debate, the hold-up was the Dream Act more than DADT, but I only heard small portions.

So there was no repeal of Don’t Ask, Don’t Tell, and there is plenty of blame to go around as to why. But perhaps more importantly is what happens now.

Now the ball is in the Obama Administration’s court. The President can single-handedly end the policy this week.

Log Cabin Republicans have asked for a world-wide injunction on the enforcement of the Don’t Ask, Don’t Tell policy following their successful case in federal court. The administration has yet to announce whether they will appeal this decision or fight the injunction, but they must decide on the latter by this Thursday.

Should the Obama Administration decline to oppose the injunction, then Don’t Ask, Don’t Tell is dead. It may continue to sit on the books until a future date, but it can no longer be an impediment to open service.

They could also decide to request a delayed injunction, a period of time in which to phase in the change in policy. This would indicate that the Administration is committed to ending the discriminatory policy.

Or the Administration could oppose any injunction, a move that would signal their intention to appeal the decision and to fight for the continuance of the ban on open gay service. Considering the likely change in Congressional partisan make-up, this would quite possibly mean that repealing DADT is unlikely for the foreseeable future.

The choice is now the President’s. On Thursday we will know whether he is a fierce advocate.

Obama’s Marine pick lobbies against DADT repeal

Barack Obama’s selection for Marine Corp commander stepped into the debate over the Military’s anti-gay policy to oppose the repeal of Don’t Ask, Don’t Tell. (CNN)

The Senate Armed Services Committee, which held a hearing Tuesday on the nomination of [James] Amos to become commandant, released 37 pages of policy questions the general answered in advance.

“In my personal view the current law and associated policy have supported the unique requirements of the Marine Corps and thus I do not recommend its repeal,” Amos wrote.

“My primary concern with proposed repeal is the potential disruption to cohesion that may be caused by significant change during a period of expended combat operations,” Amos said in his answer to the committee’s advance questions.

I’m disgusted.

Sen. Collins: “I Cannot Vote to Proceed”

Senate Majority Leader Harry Reid’s insistence on refusing to allow votes on amendments to the Defense Authorization Bill is having the feared effect of driving previous Republican supporters of the bill from voting for cloture. This is Sen. Susan Collins (R-ME) on the Senate floor:

They deserve to have a civil, fair and open debate on the Senate floor, and that is why I am so disappointed that rather than allowing full and open debate and the opportunity for amendments from both sides of the aisle, the majority leader apparently intends to shut down the debate and exclude Republicans from offering a number of amendments

…Now, Mr. President, I find myself on the horns of a dilemma. I support the provisions in this bill. I debated for them. I was the sole Republican in the committee that voted for the Lieberman-Levin language on Don’t Ask, Don’t Tell. I think it’s the right thing to do. I think it’s only fair, I think we should welcome the service of these individuals who are willing and capable of serving their country. But I cannot vote to proceed to this bill under a situation that is going to shut down the debate and preclude Republican amendments.”

According to reports, Reid once had her vote, but he lost it when he made the decision to refuse to allow votes on Republican amendments. Others on the fence were George Lemieux (R-FL), Olympia Snowe (R-ME);, Mark Pryor (D-Ark.), Richard Lugar (R-IN), Judd Gregg (R-NH), Jim Webb (D-VA), George Voinovich (R-OH), and Kit Bond (R-MO). It is unclear what effect Collins’ decision will have on the others.

The White House has issued a public statement supporting the Defense Authorization bill, but the Washington Blade quotes Servicemembers Legal Defense Network’s Trevor Thomas: “We have not seen any signs that the White House has been whipping this vote in the last 48 hours.”

DADT repeal included in defense bill today

Today Senator Reid will bring up the 2011 Defense Appropriations Bill for cloture – the process to bring the bill to a vote. Although the bill itself only requires 50 votes, cloture (ending discussion) requires 60 votes.

Unfortunately, there are quite a few stumbling blocks in the bill which may result in Republicans unanimously voting against cloture. As Jim reported, Reid is denying the ability of Republicans to offer amendments to the bill, even those which would likely have broad bipartisan support, while reserving for himself the right to introduce some of his own. Here are a few of the problems with the bill:

Don’t Ask, Don’t Tell – although this is the highest profile provision, it may not be the most controversial. A few conservative Senators have railed on about this, but I strongly doubt that this alone would have been adequate to hold up the defense bill. However, this will likely be the only provision that gets the blame.

Abortion – the bill would change the rules to allow for abortions to be performed in government hospitals.

Dream Act – this is a provision that would provide citizenship to some immigrants in the country illegally. In addition to it having only tangential relationship to Defense (the listed criteria includes Military service, a provision already available), it is controversial and not broadly supported.

Wasteful Spending – the White House has indicated that it is concerned about provisions of the bill that it sees as pork and has threatened a veto. They are unlikely to be alone in wishing to question some expenditures that may be focused less on defense than on providing federal money to “the folks back home.”

Unless Harry Reid allows Republicans to at least plead their case on these and other issues, there is a high likelihood that moderate Republicans will refuse support.

Is Sen. Reid Sabotaging DADT’s Repeal?

That’s what Servicemembers’s United’s Alexander Nicholson is asking this morning:

Just more than 60 votes had been lined up to break a filibuster on (the National Defense Authorization Act, or NDAA) and allow the legislation to move forward for debate, amendments and a final vote before the Senate adjourns for yet another month-and-a-half-long recess. That was until Sen. Reid announced he was going to use his status as Senate Majority Leader to block the minority’s customary ability to also offer their amendments to the massive annual defense-spending bill.

This unusual and controversial move by Sen. Reid predictably enraged all Republicans, including the few who were previously prepared to help break the filibuster and allow a repeal-inclusive NDAA to move forward. And who can blame them? This isn’t a very fair move on Sen. Reid’s part, and it wasn’t a very fair move at points in the past when Republicans did it either.

…Observers are already catching on to the fact that Sen. Reid is setting himself up to simply say “I tried” when Republicans vote to filibuster NDAA on Tuesday, but “I tried” will not be good enough anymore. We see through this trick, and we’ll make sure everyone else does, too. If NDAA fails this week because of cheap political stunts, we will ensure it is the Senate leadership that is held accountable, not the unreasonably slighted minority.

Christine O’Donnell: Gays Suffer From “Identity Disorder”

Christine O’Donnell, the Delaware Republican Senatorial candidate whose Tea Party-backed campaign upset the GOP’s favorite in the primaries, has parroted the ex-gay line with regard to gay people as recently as 2006. In an interview with the Wilmington News Journal reporter Victor Greto, O’Donnel said:

“People are created in God’s image. Homosexuality is an identity adopted through societal factors. It’s an identity disorder.”

Calling homosexuality an “identity disorder” is a classic feature of the ex-gay lexicon. O’Donnell undoubtedly picked up that line from her own association with the ex-gay movement in the 1990’s, when she ran a ministry called “The Savior’s Alliance for Lifting the Truth” (SALT). The ex-gay spokesperson for SALT, Wade Richards was one of the “success stories” to come out of the Memphis-based ex-gay residential program Love In Action. It was also through O’Donnell that Richards also worked with Peter LaBarbera for a while. (Finding out that LaBarbera’s office was filled with porn and leather bondage gear, ostensibly for “research”, shook him up quite a bit.) Richards finally came to understand that the ex-gay myth was a dead end. He came out in 2000:

“What helped me really come to grips was that [O’Donnell’s] sister is an open lesbian and was living in L.A. and was in a long-term relationship and was working with a youth organization,” he says. “By hanging out with her, I saw, wow, she has a pretty normal life.” Being gay, he started to realize, needn’t condemn him to a life of seedy anonymous hookups, drug abuse, and nihilism.

After he came out, he never heard from O’Donnell again:

After that, he says, O’Donnell “totally turned her back on me. I never heard from her ever again. That’s been my experience with the Christian community in general. The minute I was struggling and saying, ‘Hey, listen, I don’t know really where I am with this,’ that’s when everyone really turned their back on me.”

This appears to be a common experience among ex-gay survivors, especially those who had served as spokespersons for the movement. Once they even begin to express doubts, they are completely disowned.

Meanwhile, O’Donnell’s vilification of gay people would continue. In 1997, O’Donnell said that the government was spending too much money on AIDS, calling homosexuality “a lifestyle which brings about this disease.” In 2000, she told Fox’s Hannity & Colmes that gays get away with too much: “They’re getting away with nudity! They’re getting away with lasciviousness! They’re getting away with perversion! …They’re getting away with blasphemy!”  And in this year’s primary campaign, she engaged in a bit of gay-bating against her Republican opponent, Mike Castle. She hired a firm that released an ad that accused Castle of cheating on his wife with a man, a charge that carried no evidence whatsoever. She also accused Castle of “un-manly tactics” and told him to “put his man-pants on.” I predict it won’t be long before we start hearing about pedophilia and bestiality as the campaign wears on.

WSJ: GOP Should Be Grateful To Dems for DADT Repeal

The Wall Street Journal’s Bret Stephens has a great editorial in today’s paper urging the GOP to vote for the Defense Authorization Bill, which contains language that will begin the process of repealing “Don’t Ask, Don’t Tell.” Stephens cites retired Major General Dennis Laich, “a self-described ‘old, bald, straight guy,'” who thinks the current policy is “nuts.” We’re discharging qualified patriots at a time when the military has been forced to lower its standards in order to meet its recruiting goals. “Mr. Laich acidly notes, is that ‘we would rather have in our military middle-aged, overweight, undereducated felons than fully qualified, experienced patriots who happen to have a sexual orientation that some people find troublesome.'”

The entire editorial is behind a paywall unfortunately, but here is Stephens’ bottom line on today’s cloture vote in the Senate:

Republican senators are now bellyaching that Senate Majority Leader Harry Reid intends to jam the repeal amendment into a bill they have no real choice but to vote for. They should be silently thanking him. He’s giving them the chance to do the right thing while blaming the Democrats for it. It’s a GOP twofer, plus a vote they’ll someday be proud of.

Montana GOP lawmaker seeks to repeal anti-gay law

Back in June we, along with many others, noted that the platform of the Montana Republican Party included this position:

We support the clear will of the people of Montana expressed by legislation to keep homosexual acts illegal.

As it turns out, this was a position that had sat in their platform since 1997 and no one really noticed that it was there. But the attention proved to be embarrassing to some in the party. (AP)

“I looked at that and said, ‘You’ve got to be kidding me,'” state Sen. John Brueggeman, R-Polson, said last week. “Should it get taken out? Absolutely. Does anybody think we should be arresting homosexual people? If you take that stand, you really probably shouldn’t be in the Republican Party.”

Revising the Party platform requires a process involving committees and conventions and cannot happen over night. However, this has prompted Brueggeman to take action where he can. He is going after the defunct sodomy law that, though unenforceable, still sits on the Montana law books. (Bozeman Daily Chronicle)

State Sen. John Brueggeman says he is requesting a draft of a bill to strike down the law. The bill would be considered by the 2011 Legislature, which convenes in January.
…
The Polson Republican has criticized the GOP platform statement. He now says Montana shouldn’t have such a discriminatory law, even if it can’t be enforced.

I guess a little embarrassment can be a motivator.

Prop 8 Proponents’ new strategies

When Governor Schwarzenegger and Attorney General Brown opted not to appeal Judge Walker’s decision in Perry v. Schwarzenegger, it was unclear whether the Proponents of Proposition 8, who had been allowed intervenor status to argue on its behalf in trial, had standing to appeal the decision. Case law seemed fairly clear that they did not.

When the Ninth Circuit Court of Appeals laid out the timeline for filing, they instructed the appellants to clarify under what legal theory they had standing in their opening brief, due last Friday. The Proponents have now filed their brief.

Oddly, it appears that they are now conceding that the Proponents do not have standing to appeal. They do lay out extensive arguments as to why they should have standing, but they advise the court that it need not agree with them and seems to direct the court to not even consider their arguments.

Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.

Their entire appeal hinges on the legal argument that Deputy County Clerk Isabel Vargas of Imperial County has standing to appeal and it is her appeal that should be heard.

On December 15, 2009, the Imperial County Board of Supervisors sought intervenor status in the case. They argued that because Deputy Clerk Vargas issues marriage licenses, she (and they) ought to be able to intervene in the case. However, their real intent was stated from the onset:

Proposed Intervenors respectfully request an order allowing them to intervene in this case to guard a significant protectable interest in the subject matter of this lawsuit and to ensure the possibility of appellate review of this Court’s ultimate decision.

Imperial County and Deputy Clerk Vargas made no pretense that they were there to conduct discover or introduce evidence. Rather, their sole purpose was to provide standing should the governmental interests choose not to appeal.

This request was problematic; the deadline for intervention was July 24, 2009, and the court was already well into discovery. Their motion was not even submitted until January 6, 2010, just a few days before opening statements.

Judge Walker did not release his decision on their intervenor status until the Perry decision was released. He denied their intervenor request, but not due to the date or to their lack of interest in arguing the case. Rather, he denied their interest as a party to the case.

Vargas’s duties as a county clerk are purely ministerial and do not create a significant protectible interest that bears a relationship to the plaintiffs’ claims in this litigation.
…
Imperial County has no legally-recognized government role in the interpreting the marital statutory scheme, much less one capable of establishing the significant protectible interest required for intervention as of right.

And it is this decision that the Proponents are challenging with the Ninth Circuit. This is a rather risky legal strategy in that it requires that the Ninth Circuit make two distinct decisions, first that Vargas has an interest in the case and was falsely denied her standing as an intervenor in the trial of fact, and secondly that she is harmed by the decision and has standing as an appellate.

Naturally, the Proponents also argue against the merits of the decision. It’s all old hat and not particularly impressive. They go on a bit about the rather elderly and pre-Lawrence Baker v. Nelson and all of the rest that they presented in court.

But there was another item that caught my attention, a legal argument that is so contrary to my layman’s understanding of constitutional challenge that I laughed out loud. They argue that the unconstitutionality of Proposition 8 should be viewed as only relating to the four plaintiffs.

If this Court concludes that Proponents and the Imperial Intervenors lack standing to appeal, the judgment below must nevertheless be vacated. At a bare minimum, the district court exceeded its jurisdiction to the extent its judgment extends beyond the four Plaintiffs who were before the court. Because no class has been certified in this case, this Court “must vacate and remand,” for “the injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.”

I think it rather likely that the Ninth Circuit will not be overly receptive to the idea that the US Constitution protects the fundamental right to marry of the four plaintiffs, but no one else.

There are times when I wonder whether they are trying to lose.

Knights of Columbus funds NOM

The National Organization for Marriage refuses to follow state laws that require disclosure of who is paying for political advertising. And while some speculate that they are a front for the Mormon Church, I suspect that behind the paper face of Brian Brown lies a handful of very wealthy, very devout, very conservative Catholics who wish to influence legislators and voters without their identity being known.

But whoever provides the major funding, we now know that a chunk of it comes from the Knights of Columbus, a Catholic fraternal order.

On their website, the KOC talks about the good they do:

Our Catholic faith teaches us to “Love thy neighbor as thyself.” Members of the Knights of Columbus show love for their neighbors by conducting food drives and donating the food to local soup kitchens and food pantries, by volunteering at Special Olympics, and by supporting, both spiritually and materially, mothers who choose life for their babies. Knights recognize that our mission, and our faith in God, compels us to action. There is no better way to experience love and compassion than by helping those in need, a call we answer every day.

But what get’s less attention is where their money really goes. While they tell the reader that “During the past decade, the Knights of Columbus has donated more than $1.367 billion to charity,” the Knights define “charity” a bit differently than many of us.

Of the $34.6 million that the Supreme Council spent in 2009, only $3.0 went for doing good deeds. Eight million went to the church’s hierarchy, five million for the KOC museum, three million on “evangelization”, and over six million went for “family life” and “pro-life” programs ($4.7 million for anti-gay and $1.9 million for anti-abortion political advocacy). In 2009, one of the Knights’ largest individual donations, $1,430,000, went to the National Organization for Marriage.

In addition to the $34.6 million distributed by the Supreme Council, there were an additional $116 million in “contributions from state and local councils assemblies and Squires circles.” We do not know how much of the $116 million went to NOM.

NOM received total contributions of about $8,000,00 that year. It spent about $1.8 million on Maine’s referendum to block same-sex marriage.

(hat tip Washington Independent)

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.

Scalia: gays and women not included in “any person”

Supreme Court Justice Antonin Scalia believes that women and gay people are not protected by the constitution from state mandated and enforced discrimination. (SF Chronicle)

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

“If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

Scalia, a proponent of “originalism” believes that it doesn’t matter what the words of the Constitution say or even what a logical and consistent application would yield. Rather, it is what was in the minds of the white men who drafted that wording which matters.

And Scalia believes that when they wrote

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

they clearly did not intend for “any person” to include women or gay persons. So I guess we know how he’ll be voting in the upcoming cases which deal with the equality of gay citizens.

Since the “original intent” is required for Scalia to find that the US Constitution protects women and gay people, perhaps we should provide him with some original intent. Maybe Scalia would find it more convincing if Congress and the States amended the US Constitution to put the words “any person” in bold font.

Papa Ratzi protested in London

When Pope Benedict XVI (nee Cardinal Ratzinger) visited Britain this weekend, the response was not uniformly adulatory. In addition to adoring Catholics, Papa Ratzi also drew a large protest.

With a crowd of around 11,000 for Saturday’s protest, the protest drew upon a wide base of discontent with the current pontiff. (Telegraph)

Among the marchers were a wide range of groups, including gay and lesbian Catholics, child abuse survivors, atheists and anti poverty campaigners. Organisers said the turnout was five times greater than expected.
…
Peter Tatchell, the human rights campaigner, criticised the Pope for obstructing police investigations into paedophile priests.

He said: “The Pope’s apologies do not ring true. Even today he is refusing to hand over Vatican files he holds under lock and key. Priests who sexually abused children should be brought to justice and the church should do its bit.”

Calu Lema, a Columbian-born graphic designer who works in London, said that, as “a tax paying lesbian”, she opposed the state visit.

She said: “The Pope has a right to come here and people have a right to come and hear him.

“But why should I, as a lesbian taxpayer, pay for his state visit when he is opposed to women’s rights to contraception, opposed to gays and gay marriage and opposed to human rights?

“I respect the rights of Catholics to their faith, but they should respect my rights.”

Of course others were supportive of the Pope.

“We’ve also seen his warmth with people, such as the children he’s picked up and kissed. That’s changed people’s view of the Pope.”

Ummm… ewwww

Wackadoodle files amicus brief in Perry v. Schwarzenegger appeal

High level cases bring out the crazies. And their attorneys. And so today Margie Reilly and her attorney James Joseph Lynch have weighed in on Perry v. Schwarzenegger.

Margie’s qualifications are stellar. In addition to being a part-time substitute pre-school teacher,

Margie has attended an eight week course given by the Diocese of Sacramento on “Theology of the Body”. The course is preparation for teaching about marriage, family, sexuality and creation. In the midst of the dramatic clash between competing ideas that we face today, men’s and women’s call to life-giving communion in marriage is the center of a great struggle: It is a struggle for securing the well-being of our children, between the forces of life and death, between love and hatred. It is her wish to join the struggle on the side of marriage as defined between a man and a woman, life, and family which are worth embracing for the preservation of our society.

And as for James Joseph, well his curriculum vitae suggests a somewhat less than successful lawyer. Mostly he seems to just act as an anti-gay, anti-abortion activist who fills his empty hours with drafting amicus briefs with brilliant legal argument such as:

Whether to have sex with the same sex, where propagation is not possible, or to have sex with the opposite sex, where propagation of the family is possible, is not unalterable; it is a choice of the individual, thus not a fundamental right. In fact, current thinking from various sources suggests that there are “breeders” and “non-breeders”. Biologically speaking, procreation occurs between heterosexuals in an act of begetting or generating, whereas mere fornication by non-breeders is incapable of producing offspring. And that difference is substantive. The constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. Nashville, Chattanooga & St. Louis Ry. v. Browning (1940) 310 U.S. 362; Skinner v. Oklahoma (1942) 316 U.S. 535, 545.

It is obvious as a factual matter the two classes are different, one to breed, the other not to breed, and it is common knowledge that the general opinion is that they are different relationships.

Well, there ya have it. Marriage is reserved for breeders.

(please, oh please, no one tell James Joseph Lynch that “breeders” is actually a derogatory slang term)