Zack Rosen, usually writing at The New Gay and known more recently for showing all (Google it, grown-ups), is now comfortable telling all too, following his participation in the Get Equal protest of Speaker Nancy Pelosi (D) on Capitol Hill that ended with Rosen's arrest.

Writing today at Metro Weekly, he shares an interesting perspective -- in his Rosen way:

What I did Wednesday felt better than anything I did last week, including a couple blowjobs. There are talented, engaged people in this world who are dying for a chance to make change and they should not be told by anyone that their tactics are wrong. I approached GetEQUAL first as a curious bystander, and discovered over the course of several weeks that they were inclusive of most everyone's agendas. This was not a great wall of opinion to cross. I've never felt so heard in my attempts to just do something, and that is why I put myself on the line.

I've been out of jail for more than 24 hours, and that feeling hasn't left me yet. Even better, I still feel it as I sit here in this chair. Everyone who cares should do something, and there is no something that is wrong. The Human Rights Campaign plays just as valuable a role as the lone man with the picket sign. If you try to have one without the other, they both lose.

There is "no something that is wrong." An interesting perspective from someone who, from my vantagepoint, is always willing to try something new.

From the National Organization for Marriage's website, NOM executive director Brian Brown announced today at the latest "Summer for Marriage" tour stop in St. Paul, Minnesota:

"We've taken great pains to make clear what were all about. We view ourselves as a new civil rights movement ... committed to something that in the 1960s was key: the right to vote."

Stop. Re-read that.

For some context, here's how the United States Department of Justice describes the impetus for and passage of the Voting Rights Act in 1965:

By 1965 concerted efforts to break the grip of state disfranchisement had been under way for some time, but had achieved only modest success overall and in some areas had proved almost entirely ineffectual. The murder of voting-rights activists in Philadelphia, Mississippi, gained national attention, along with numerous other acts of violence and terrorism. Finally, the unprovoked attack on March 7, 1965, by state troopers on peaceful marchers crossing the Edmund Pettus Bridge in Selma, Alabama, en route to the state capitol in Montgomery, persuaded the President and Congress to overcome Southern legislators' resistance to effective voting rights legislation. President Johnson issued a call for a strong voting rights law and hearings began soon thereafter on the bill that would become the Voting Rights Act.

Congress determined that the existing federal anti-discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative hearings showed that the Department of Justice's efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process; as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.

President Johnson signed the resulting legislation into law on August 6, 1965.

The 45th anniversary of Johnson's signing of the law, then, comes next Friday.

According to NOM's schedule, the group is taking off that day from its tour.

The next day, however, on Saturday, August 7, NOM will be in the South, visiting Atlanta, which has a history that adds more context to Brown's attempt to claim the mantle of the struggle for voting rights in the '60s. From the Atlanta Regional Council for Higher Education's "Atlanta in the Civil Rights Movement" website:

In 1965, a record 11 African Americans were elected to the state legislature, including Grace Towns Hamilton, Ben Brown, and Julian Bond (of SNCC). White members of the House of Representatives refused to seat Bond, claiming that he was un-American because of his statements against the Vietnam War. Bond ran for office and was elected three times. The House voided Bond’s election after each victory. It would take a federal court order to finally seat him in 1967.

Fighting discrimination, then, is what "was key" in the 1960s. The unwillingness of state officials to protect groups from that discrimination, likewise, is what the Voting Rights Act was "all about." And, at the National Equality March this past fall, Bond -- now the chairman of the NAACP -- made it clear where he believed the spirit of the 1960s movement for equality now resides as he spoke forcefully for full equality for LGBT Americans. (The video of his speech can be found below the jump.)

* * * * *

The next stop of NOM's tour -- which has been met by countervailing pro-equality events organized by local groups, Freedom to Marry and the Courage Campaign throughout the tour -- is set for Thursday, July 29, in St. Cloud, Minnesota.

A little before noon today, July 28, eight individuals associated with Get Equal, who had been taking an ordinary tour of the U.S. Capitol, began a protest once they reached the Capitol Rotunda. As statues of Presidents Washington, Jefferson, Lincoln and others surrounded them -- including a bust of the Rev. Martin Luther King Jr. -- the eight were arrested within an hour for "Unlawful Conduct - Demonstrating in the Capitol Building," according to the U.S. Capitol Police.

At first, the eight stood silent in the middle of the Rotunda with signs serving as a "reminder" to House Speaker Nancy Pelosi (D) that she had promised a vote on the Employment Non-Discrimination Act this year. As the Rotunda was being cleared of visitors and media because of the protest, the eight sat down, began pounding the marble floor and chanting for a vote on ENDA.

"Speaker Pelosi, I am somebody," the eight chanted, "And I deserve job protection, right here, right now."

Those arrested, according to Get Equal, were Orelia Busch, Charles Butler, Sean Carlson, Shannon Cuttle, Robby Diesu, Erica Knepp, David McElhatton and Zack Rosen of the blog The New Gay.

[PHOTOS: Get Equal protests in the Capitol Rotunda on Wednesday, July 28. (Photos by Chris Geidner.)]

Judith Peabody, a New York City socialite known well for her causes, as well as her fashion, died on Sunday, according to The New York Times. The Times obituary prominently features her early support of AIDS causes:

In the mid-1980s, after the death of a friend from AIDS, Mrs. Peabody volunteered to work for the Gay Men’s Health Crisis. She became a care partner — someone who accepts responsibility for helping an AIDS patient — for dozens of men with AIDS and led support groups for patients’ loved ones and caregivers, in addition to raising money for the organization and donating her own to it.

“Mrs. Peabody was someone who recognized the challenge of AIDS long before it was fashionable,” Marjorie J. Hill, the chief executive of the Gay Men’s Health Crisis, said in an interview on Monday. “She did everything she could, on a personal level and an institutional level, to combat the stigma of the disease among people living with H.I.V. and their caretakers. She left her mark on thousands of lives at G.M.H.C.”

As news of the disease's path throughout the world continues, it's always somber and sobering to remember those who, early on, had joined in the fight.

A 1987 Newsday article on her work -- headlined "Fifth Avenue's 'AIDS Lady' Socialite Judith Peabody brings her name and a tireless effort to the fight against the deadly disease" -- puts Peabody's work in perspective:

"When Betty Ford talks about alcocholism, it gets people's attention. When Judy Peabody talks about AIDS, it gets people attention," explains Richard Dunne, executive director of the Gay Men's Health Crisis, who has become close friends with Peabody over the past year.

With one seat vacant on the New Jersey Supreme Court, a three-three split decision on whether the high court would hear the challenge to the inadequacy of civil unions, which are available for same-sex couples in New Jersey, means that the effort launched by Garden State Equality and Lambda Legal hit a major roadblock today.

The effort was intended to avoid a filing in trial court, but today the three justices held that "[t]his matter cannot be decided without the development of an appropriate trial-like record."

From Steven Goldstein, the chair of Garden State Equality:

“Because of the legislature's inability to act and the Supreme Court's decision today, New Jersey continues in a caste system where an entire people are thrown aside into a profoundly inferior status, spit on, dumped on, utterly degraded, by hospitals and employers who mock the term "civil union."  Children will continue to live with an imprimatur of inferiority,  psychologically devastated because they can't marry or because their same-sex parents cannot marry.  Same-sex couples will continue to be denied the consistent right to visit one another in the hospital, to make medical decisions for one another, and to receive equal health benefits from employers, all because of the deprivation of the equality and dignity that uniquely comes with the word ‘marriage.’

The Order: Lewis Order 7-26-10.pdf

[UPDATE AT 12:34 PM: A FIRST-TAKE ANALYSIS ...

The argument behind avoiding starting the case at the trial court was that the courts in New Jersey -- up to and including the Supreme Court -- already had heard the case regarding same-sex relationship recognition. In the 4-3 decision reached in October 2006, the majority did not decide whether marriage was required but ordered the legislature to provide equal "rights and benefits to committed same-sex partners." As the legislature chose the civil union route rather than marriage equality at that time, this case argued that, no, civil unions weren't enough to meet the obligations placed on the legislature in the original ruling.

Supporters of marriage equality also have raised concerns about steps Gov. Chris Christie (R) has taken to push the high court in a more conservative direction by declining to reappoint a justice to the Supreme Court, an unprecedented move in the state. As he gets the chance to refuse to reappoint other justices, the case could become less viable.

In January, the legislature's Senate voted down a marriage bill, which prompted the filing of the action turned down today.]

[UPDATE AT 1:13 PM: From Lambda Legal's deputy legal director, Hayley Gorenberg, in a statement:

"We are terribly disappointed about today's ruling. Our plaintiffs and the New Jersey legislature's own Civil Union Review Commission documented the rampant discrimination same-sex couples face as a consequence of civil union status, and this ruling now relegates our plaintiffs to second-class citizenship for even longer.

"The New Jersey Supreme Court ruled in favor of equality in 2006, and this ruling is a saddening setback for our plaintiffs and their families, who have been denied the rights and responsibilities of marriage for years, and now continue to be denied.

"We are now assessing possible next steps in Superior Court."]

Saying that the Pentagon will have "no choice" but to work with them, a group of active duty gay and lesbian servicemembers, OutServe, is sending a statement to the Pentagon this morning, July 26. The statement is both literal and in action, as the renamed group launches a website and issues a public statement aimed at the Pentagon regarding OutServe's views on the end of the "Don't Ask, Don't Tell" policy.

Asked how OutServe, formerly known as Citizens for Repeal, can effectively communicate with the Pentagon while the DADT policy is still in effect, Ty Walrod, the group's civilian co-director and spokesperson wrote in an email response to Metro Weekly on Sunday afternoon, "The answer is, they have no choice. Never before has this pressure come from within the military.

"As the first organization of actively serving gay and lesbian troops, we know they will follow our website outserve.org, pay attention to our press releases, and observe the working examples we can provide for units where gay and lesbian troops already serve openly in their units," he wrote. "No more can they say 'activists' want this; they now have to deal with actual troops."

Co-Director JD Smith, an officer who goes by his initials to protect his privacy, said in a statement, "Active duty and reserve gay and lesbian troops have been critical to the nation's defense, but almost completely absent from the conversation. We're fixing that."

Metro Weekly spoke with Walrod on Sunday afternoon in advance of the group's Monday announcement.

"I'm the only civilian member [of the group]. They obviously can't speak out without outing themselves publicly," Walrod said. "I saw the need for the active duty to have a voice."

About the group, which his primarily organized via Facebook and claims to have 450 active duty servicemembers as members, Walrod said, "It's all private. We absolutely have a critical mass. This underground does exist. And this group, our intention really is to provide a voice for them until they can speak for themselves."

In the statement, which can be found below the jump, OutServe and other related groups' representatives "articulate what we believe to be reasonable expectations about our ongoing professionalism in defense of our nation" following the end of DADT, including that "[w]e are service members first" and "we seek to be accepted as equals while conducting ourselves with the same professionalism regarding our personal lives."

[UPDATE AT 1:31 A.M.: Alex Nicholson, the executive director of Servicemembers United, quickly took aim at OutServe's purpose and the claim in its initial news release that it is "the first-ever organization of actively serving gay troops" and Smith's statement that active duty troops have been "almost completely absent from the conversation." Nicholson wrote in a statement to Metro Weekly:

"It simply isn't true to suggest that active duty troops haven't been a part of the debate and deliberation on this issue. In fact, I would suggest that active duty voices have led the discussion, given that Dan Choi and Victor Fehrenbach have dominated most media coverage of this issue and have represented our community in a dedicated and persistent fashion. To suggest otherwise is an insult to these guys who have put a lot on the line.

"Also, it flies in the face of all the work that SLDN and Servicemembers United have done to privately facilitate the Working Group's extensive access to the gay military community. Wild and inaccurate claims from new people who are temporarily interested in this issue at the height of its publicity are the last thing our community needs at the last hour after years and years of hard work to get us where we are today."

UPDATE AT 11:05 A.M: OutServe's Walrod responded to Nicholson's comments in a statement provided to Metro Weekly:

"All of us at OutServe have nothing but respect and gratitude for the tremendous work of the other organizations and individuals playing a role in ending DADT. Our collaboration with and sign-on from Knights Out and SAGALA of our statement to the Pentagon is just one example of that. What is new about OutServe is that we are no longer underground, we are out of the shadows and proudly taking a critical role to see a smooth transition to the end of DADT.

"We see a light at the end of the tunnel for those serving in silence and fear and we are bringing our strong and unique voices to the debate in a more visible way – one that we think will only strengthen the work of all of us on the side of equality for all those serving our nation in the military."

On the "interesting timing" front, Servicemembers United also announced the launch of its own new initiative -- a 501(c)(4) lobbying arm named Servicemembers United Action Fund. The 501(c)(4) status will allow the organization to lobby Congress without limits placed on 501(c)(3) organizations and can engage directly in political campaign activities (with some limitations). From the group's release:

"We are very excited and proud to be launching the first 501c4 affiliate organization dedicated to the 'Don't Ask, Don't Tell' issue. This represents another big step forward for the gay military and veteran community and another weapon in our community's arsenal as we move into a critical period for the 'Don't Ask, Don't Tell' issue."

Another day, two other LGBT orgs.]

Andy Humm raises more questions than he answers in his column introduced by Michael Petrelis at Petrelis's blog, but it is a good thought piece -- particularly now, as LGBT activists gather at Netroots Nation in Las Vegas.

The current disgraceful situation [of LGBT ] is in stark contrast to the first ten to fifteen years of the post-Stonewall LGBT movement when it was almost entirely grassroots, almost no one got a salary, and every big decision was decided in forums where anyone could attend and everyone could vote.

It was not easy being part of those contentious meetings, but that is how true democracy works and how grassroots movements are built--from the ground up. It wasn't totally chaotic. The Gay Activists Alliance used Roberts Rules of Order. ACT UP used a consensus model. They were highly democratic and got a lot more done in a year than any of our current groups have been able to accomplish in decades.

....

[E]ven the agenda of GetEQUAL is not subject to an open democratic process. These self-styled radicals have essentially adopted the HRC agenda hook, line and sinker but are just demanding it more obstreperously. They criticize HRC but are really just playing bad cop in contrast to their own good cop role in the service of a narrow agenda--repeal of DADT and ENDA--that there hasn't been a serious, community-wide debate about for almost 20 years.

Humm's piece comes following Get Equal's action blocking the roadway on the Strip in Vegas on Tuesday in a protest of the lack of action from Senate Majority Leader Harry Reid (D-Nev.) to advance the Employment Non-Discrimination Act, which led to arrests. Now, with Reid scheduled to speak at Netroots Nation on Saturday afternoon, the question is: What will Get Equal do on Saturday?

Check it out.

Former Lt. Dan Choi, who Metro Weekly reported on July 21 has been discharged from the military, spoke with his unit commander today and issued the following statement:

Seven same-sex couples, represented by the American Civil Liberties Union, have sued the state of Montana for the lack of equal relationship recognition. In a first-of-its-kind twist, however, the state-court lawsuit is not seeking equal marriage rights for the same-sex couple plaintiffs.

Instead, the couples are ask the court to require officials in Montana -- which has a state constitutional amendment prohibiting recognition of same-sex marriages -- to offer "a legal status and statutory structure that confers the protections and obligations that the State provides to different-sex couples who marry, but not the status or designation of marriage."

The key paragraphs in the Complaint, which was filed today, lay out the alleged violations of the state's constitutional protections:

All Montanans, including Plaintiffs, are guaranteed the right to equal protection of the law under Article II, Section 4 of the Montana Constitution. The categorical exclusion of Montanans such as Plaintiffs from the protections and obligations afforded similarly-situated different-sex couples who have the opportunity to marry deprives Plaintiffs and their families of equal protection under the law in that the exclusion constitutes unconstitutional discrimination based on sexual orientation and unconstitutionally burdens the Plaintiffs' fundamental rights to privacy, dignity, and the pursuit of life's basic necessities.

The exclusion of Plaintiffs from any legally recognized and protected same-sex relationship and family status violates the fundamental rights of same-sex couples, including Plaintiffs, by burdening and interfering with their rights to privacy, dignity, and the pursuit of life's basic necessities, which are guaranteed under Article II, Sections 10, 4, and 3 of the Montana Constitution, respectively.

The exclusion of Plaintiffs from any legally recognized and protected same-sex relationship and family status is arbitrary and therefore denies Plaintiffs' right to due process in violation of Arlicle II, Section 17 of the Montana Constitution.

The couples are represented by Betsy Griffing, legal director for the ACLU of Montana; Elizabeth Gill, staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project; James Goetz and Ben Alke of the Bozeman, MT, law firm Goetz, Gallik & Baldwin P.C.; and Ruth Borenstein, Philip Besirof and Neil Perry of the California law firm Morrison & Foerster LLP.

Get Equal is starting off Netroots Nation ... with a protest!

Challenging Senate Majority Leader Harry Reid (D-Nev.) on the Employment Non-Discrimination Act, the activists have blocked traffic with activists and a sign calling on Reid to pass ENDA, and unfurling a banner over the strip urging the same.

According to Steve Friess, who is on the scene, the cops have arrived and -- unsurprisingly -- Get Equal's activists are not standing down.

[UPDATE: Friess reports that there are multiple arrests. From the photo, those in custody include Robin McGehee and Lt. Dan Choi.

A picture of the arrestees from Friess (larger version available if you click the pic!):



From the write-up from Friess:

"We're being arrested because gay and transgender people in America are being denied their equal rights," shouted Lt. Dan Choi to passers-by as he was led in handcuffs to a spot near the front driveway of the New York-New York Hotel-Casino. "I want you to remember that as you hang out in Las Vegas today."

The protesters were booked on one count each of blocking the roadway and obstructing a police officer, both misdemeanors punishable with a fine. They expected to post $400 bail a piece and be released by dinnertime, a GetEQUAL spokeswoman told AOL News.

Heather Cronk, managing director of Get Equal, said in a news release:

“Today’s leading news in Nevada is the fact that newly-released unemployment numbers show 193,000 people in the state are looking for jobs. There is no doubt that many LGBT workers are included in that number, who have the added burden of discrimination to contend with when applying for a job.  It’s not right, it’s not fair and it’s not the American way.  LGBT workers, like all American workers, just want to earn a living, pay their bills, and provide for their families like everyone else.”]

The Judiciary Committee voted in support of the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court seat being vacated by Justice John Paul Stevens, sending the nomination to the full Senate for consideration. On a vote of 13-6, with Sen. Lindsey Graham (R-S.C.) as the only Republican voting yes, the Senate Judiciary Committee took the action after each senator was given time to explain his or her vote.

As with the hearings, much of the Republican opposition circles around Kagan's dealings with military recruitment at Harvard Law School as it related to the "Don't Ask, Don't Tell" policy and her potential views on same-sex marriage.

"I'm concerned with [her ability] to defend the Defense of Marriage Act [as solicitor general]" Sen. Chuck Grassley (R-Iowa) said, noting the Justice Department's brief defending DOMA included a statement that the Obama administration opposed DOMA as a policy. "How do we believe that she'll uphold a law as a Supreme Court justice when she disagrees with that law?"

Sen. Jon Kyl (R-Ariz.) criticized the decision not to appeal the Ninth Circuit's Witt decision, calling her reasoning "hollow." He also criticized the distinction between Kagan's response to Sen. John Cornyn (R-Texas) during her solicitor general confirmation hearings about whether there is a constitutional right to same-sex marriage and her answer to similar questioning at this hearing. At that time, she had replied that there was no right to same-sex marriage, which she explained at this hearing as referencing the established law. Now, however, she refused to discuss the matter because, she said, a case on the topic is likely to come before the Supreme Court.

Sen. Lindsey Graham (R-S.C.), the sole Repeublican expected to support the nomination, said on that topic, "If you think same-sex marriage is prohibited by the Constitution, I doubt this is the place you're going to be saying it, because you're going to have to be deciding it" eventually.

Graham circles around the military recruitment issue, concluding, "I don't believe that" Kagan has "animosity" toward the military, calling her a "loyal American."

He then begins to explain his expected vote for Kagan, saying at one point, "I view my role ... in part, protecting the independence of the judiciary. "After the hearing, it was not a hard decision to make" to support Kagan, adding that Obama chose "wisely."

Some major action toward international engagement on LGBT issues today, with a nod from President Obama -- as the White House Broadway night was set to get under way.

From Talking Points Memo:

The International Gay and Lesbian Human Rights Commission today won accreditation from the United Nations despite Republican efforts to defeat the group's application. ... [T]he resolution passed 23 to 13, with 13 abstaining.

"Today's decision, we think, is an affirmation that the voices of lesbian, gay, bisexual and transgender people have a voice in the UN," said Sara Perle, a spokeswoman for IGLHRC. "It's a clear message from [the council] that diverse voices cannot be silenced."

Later in the day, the White House released this statement from Obama:

I welcome this important step forward for human rights, as the  International Lesbian and Gay Human Rights Commission (ILGHRC) will take its rightful seat at the table of the United Nations. The UN was founded on the premise that only through mutual respect, diversity, and dialogue can the international community effectively pursue justice and equality.  Today, with the more full inclusion of the International Lesbian and Gay Human Rights Commission, the United Nations is closer to the ideals on which it was founded, and to values of inclusion and equality to which the United States is deeply committed.

It hasn't been that long since anti-gay activist George Rekers put "lifting my luggage" into the American dictionary of hypocritical sexual innuendo by taking a European vacation with a young man from Rentboy.com. But Truth Wins Out today went public with accusations of another closeted hypocrite -- although this case is more disturbing because of the claims of sexual abuse.

From TWO:

Truth Wins Out (TWO) released an exclusive video statement today from two former clients of “ex-gay” life coach Alan Downing. The clients, Ben Unger and Chaim Levin, alleged that during individual therapy sessions, Downing (pictured) made them undress in front of a mirror and touch their bodies while the significantly older therapist watched. Unger and Levin call the sessions a “psychological striptease” and believe they were harmed by what they consider unprofessional behavior and sexual misconduct.

Downing, who admits he is still attracted to men, is a major player in the “ex-gay” industry and a practitioner of so-called “reparative therapy”. He is the lead therapist for Jews Offering New Alternatives to Homosexuality (JONAH) and is listed on the People Can Change website as a “Senior Trainer” for Journey into Manhood, which is a controversial “ex-gay” backwoods retreat designed to supposedly make gay men more masculine.

It seems that as one reparative therapy charlatan falls, another soon follows. Perhaps the domino effect may finally take effect, even as the far-right, anti-gay establishment of organizations such as the Family Research Council and the National Organization for Marriage try to keep putting new pieces into place. But the whole facade's looking shakier than ever.

The President and First Lady Michelle Obama will be continuing the White House Music Series in the East Room this evening with a salute to Broadway. PBS will be recording the event for later broadcast, but the event will be livestreamed on the White House website.

From the White House:

In the evening, [20 dance students from Duke Ellington School of the Arts and the Joy of Motion Dance Center who spent the day in a workshop, led by choreographer Jerry Mitchell, rehearsing a segment from the Broadway show Hairspray] will join the ranks of major Broadway artists and new talent who will perform selections from American musicals that reflect the spirit, energy and ambition of America.

Participants include Nathan Lane, Idina Menzel, Audra McDonald, Elaine Stritch, Brian d’Arcy James, Chad Kimball, Tonya Pinkins, Marvin Hamlisch, Karen Olivo, Assata Alston, Danielle Arci and Constantine Rousouli under the direction of George C. Wolfe. President Obama will make opening remarks at this pooled press event, which will be held in the East Room and streamed live on www.whitehouse.gov starting at 7:00 p.m. ET. “A Broadway Celebration: In Performance at the White House” will be televised on public broadcasting stations nationwide on October 20, 2010 at 9:00 p.m. ET as part of the PBS music series “In Performance at the White House.”

Check it out!

Carte Goodwin (law firm bio here), the former general counsel to West Virginia Gov. Joe Manchin (D), is set to be the pick of his old boss for the Senate seat that had been held by the late Sen. Robert Byrd since 1959, according to The Washington Post and Associated Press. Manchin is expected to name Goodwin as his choice at 2 p.m. today.

[UPDATE: From the AP, on the announcement: "Manchin announced Goodwin's appointment Friday during a news conference at the West Virginia Capitol."]

The first new senator from West Virginia since 1985, Goodwin will only hold the seat through the special election to be held to fill the remainder of Byrd's term. It is not yet clear whether the election will be held in 2010 or 2012 to fill the seat, although 2010 is likely. 

Despite Goodwin's likely short tenure, when compared with Byrd's lengthy service, today's appointment is noteworthy for LGBT organizations pushing for the repeal of the "Don't Ask, Don't Tell" policy.

After strongly opposing open gay service when President Clinton pushed for the change in 1993, Byrd supported the amendment voted on in the Senate Armed Services Committee in May to allow the president and military leaders to repeal to statute that underlies DADT.

Adam Smith, a board member of Fairness West Virginia, discussed the appointment with Metro Weekly early Friday afternoon before Manchin's announcement.

"One of Sen. Byrd's last votes was to repeal Don't Ask, Don't Tell. We're hopeful, if reports are right that he is the governor's choice, that Carte Goodwin will follow suit," Smith told Metro Weekly on Friday. "Like we continue to do with the other members of the West Virginia congressional delegation, we will follow-up quickly after this appointment to talk with Goodwin and his new Senate staff to make it clear that West Virginia is a state that respect all its citizens, regardless of sexual orientation or gender identity." 

Goodwin graduated near the top of his class from Emory School of Law in Atlanta and then returned to West Virginia, where he clerked in 1999-2000 for U.S. Fourth Circuit Court of Appeals Judge Robert B. King. He graduated from Marietta College, on the Ohio-West Virginia border, with a bachelor's degree prior to law school.

[PHOTO: Image from Goodwin & Goodwin LLP firm bio.]

The D.C. Court of Appeals issued its awaited decision in Bishop Harry Jackson's appeal of the D.C. Board of Elections and Ethics's decision that his proposed marriage initiative was an improper subject of an initiative. In a 5-4 decision, the court held that the Human Rights Act limitation in District law, which prohibits initiatives or referendums that would violation the Human Rights Act, is permissible. In light of that ruling, all 9 judges agreed that the proposed marriage initiative would violate the Human Rights Act and is, thus, not permitted.

In the absence of a successful appeal, then, D.C. marriage equality, which went into effect earlier this year, cannot be subject to an iniative.

The court, which heard arguments in the case on May 4, held this morning:

[W]e ... affirm the Superior Court’s rulings that the Council acted lawfully in imposing the Human Rights Act safeguard and that the Board correctly determined that the safeguard required it to reject the proposed initiative.  As we go on to explain, we reach this result because (1) resolution of this appeal turns on what legislative authority the Council intended to share with the people of the District of Columbia when it passed the Charter Amendments Act (the “CAA”); (2) the Human Rights Act safeguard is not inconsistent with the Council’s intent as conveyed by the language of the CAA; (3) this court owes substantial deference to the Council’s legislative interpretation that the Human Rights Act safeguard carries out the intent of the CAA; (4) the relevant history convinces us that the Council could not have intended to authorize, as a proper subject of initiative, any initiative that would have the effect of authorizing discrimination prohibited by the Human Rights Act; (5) the Home Rule Act gave the Council authority to direct the Board, through the legislation that the Council passed to implement the CAA, to refuse to accept an initiative that would authorize prohibited discrimination;  and (6) the Board correctly determined that the proposed initiative would have the effect of authorizing such discrimination.  On the last of these points, our court is unanimous.

Jackson v. D.C. Board of Elections and Ethics, at 3-4. The court, in its majority opinion written by Judge Phyllis Thompson, and joined by Judges Vanessa Ruiz, Inez Smith Reid, Noel Anketell Kramer and Anna Blackburne-Rigsby, summarizes the plaintiffs' lawsuit as follows:

Appellants urge us to hold that the Human Rights Act safeguard of the IPA conflicts with the broad right of initiative created by the CAA, and therefore “cannot be used as a basis for disapproving the Marriage Initiative of 2009.”

Id. at 17.

In discussing the challenge, the court held, "In passing the CAA, the Council had to decide the extent of the legislative power it would share with the people." Id. at 19.

In the most important conclusion to be made by the court, it held:

The Charter amendment that established the right to initiative must be read in conjunction with the Home Rule Act, which, although conferring on the Council broad legislative authority, makes clear that the legislative authority is subject to limits implied by the United States Constitution and to the enumerated limits [set out by Congress.] Since [the section defining the initiative right in the District] obviously could not and did not remove those limits, it cannot be read as expressing the entire scope of restrictions on the initiative right.  Rather, [the section] does not purport to address, and is ambiguous as to, whether there are other limitations on the right to initiative (and referendum). The Human Rights Act safeguard[, which prohibits initiatives that would violate the Human Rights Act] is not inconsistent with that ambiguous language.

Id. at 21. Four of the judges of the court disagreed with this conclusion, in an opinion written by Judge John Fisher. He was joined by Chief Judge Eric Washington and Judges Stephen Glickman and Kathryn Oberly. Fisher wrote:

This court must decide, as a matter of first impression, whether the ... "Human Rights Act limitation" is a valid restriction on the right of initiative. ... [W]e would hold that it is not.

Had our view prevailed, we would not have reached the question whether the Board properly refused to accept the proposed initiative.  In light of the majority’s holding, however, and in light of recent legislation recognizing and authorizing same-sex marriages in the District of Columbia, we agree with the majority’s conclusion that the proposed initiative would authorize, or have the effect of authorizing, discrimination prohibited by the Human Rights Act, as amended in 2002.

Id. at 55.

The ruling: 10-CV-20_JACKSON_MTD.pdf

[UPDATE: From the Human Rights Campaign, which has provided support to the D.C. for Marriage efforts:

“The court’s ruling today is a significant victory for justice, the rule of law and the protection of all D.C. residents against discrimination,” said Human Rights Campaign President Joe Solmonese. “It’s time for the National Organization for Marriage to realize equality is here to stay no matter how much money they want to throw at turning back the clock.”]

Although the charges were dismissed against Lt. Dan Choi and James Pietrangelo on Wednesday morning (as Metro Weekly's Yusef Najafi reports here), questions remained about why they were abruptly dropped moments before trial.

Those questions, though, aren't the focus for Get Equal.

Though Choi and Pietrangelo were joined outside the courthouse by their lawyers, communications consultant and Get Equal activists (pictured), Get Equal already had begun its next effort -- a pushback against inaction on ENDA.

The organization sent an email to its mailing list on Wednesday morning, asking "Which Democratic leader should we hold accountable next for workplace protections for LGBT people?"

The email, looking for congressional action on the Employment Non-Discrimination Act, gives options -- four Democrats: House Speaker Nancy Pelosi (Calif.), Senate Majority Leader Harry Reid (Nev.), House Education and Labor Committee Chiarman George Miller (Calif.) or ENDA House sponsor Rep. Barney Frank (Mass.).

From the email:

Who do you think we should hold accountable?

    * Should it be ... Pelosi, who has promised us since May that a vote will happen by the second week of June? [1]
    * Should it be ... Frank, who said "we will get this [ENDA] done fairly quickly," but then called GetEQUAL's pressuring tactics "immature" and "tacky"? [2]
    * Should it be ... Miller, who heads the House Education and Labor Committee and has said via a spokesperson "he intends to get to it [ENDA] very shortly?" [3]
    * Should it be ... Reid, who said that he will "fight hard for the votes to get it passed," but who has failed thus far to pressure the last few Senators for their votes? [4]

---

[1] "Pelosi Talks ENDA, DADT With Advocates" http://www.advocate.com/printArticle.aspx?id=112559
[2] "ENDA Vote Coming Soon" http://www.metroweekly.com/news/?ak=5095 and "One Story, Two Sides" http://www.metroweekly.com/news/?ak=5121
[3] "Shifting Timelines" http://www.metroweekly.com/news/?ak=5156
[4] Harry Reid "wholeheartedly supports" ENDA http://gay.americablog.com/2009/08/harry-reid-wholeheartedly-supports-enda.html

Meanwhile, Choi, via his Twitter feed, was moving on quickly from his rejoice at the dismissal -- "Victory for truth today! Government drops case against us." -- to a call to action -- "Bastille Day commemorates an oppressed community rising up to liberate the imprisoned among them. "

[PHOTO: Choi and Pietrangelo are joined by their attorneys, communications consultant and Get Equal activists following the dismissal of the man's cases on Wednesday morning, July 14. (Photo by Chris Geidner.)]

Writing about "political fear" and the oft-repeated line that "[e]lected officials and candidates view the gay community as an ATM," AmericaBlog's Joe Sudbay posits, "We do need to create the conditions to win. And, we're not going to get there by playing nice. For one thing, our advocates need to call out 'political homophobia' when they see it. And, we need to make politicians fear us, not our opponents."

I asked my Twitter followers for their thoughts, quoting Sudbay's statement from later in his post and writing, "'We need to be feared, not loved.' Is this the path to LGBT equality?" I received a wide range of responses and thought I'd share some here:

kwalsham: isn't most of the problem that our love IS feared?

stonermc: I presume he means politically and in power? Otherwise, what the heck, people alreay fear us and hate us. I don't think it's a case of fear, it's respect we need.

meitzjoei1: THAT'S ONLY GOING 2 GET MORE GAYS ATTACKED THAN NOW-WE NEED TO WORK TO BE RESPECTED-LOVE OR EVEN LIKE ARE 1 TO1.

summersgill: Fear is a short-term tactic. It gets you a moment of power. It works against you in the long-term. We are in a decades long campaign for hearts and minds. Fear works against that goal.

djambrek: The Dems need to fear us.

StephenMolldrem: "Might makes right," yes but not always. Feared when appropriate, but not universally. Or else we'll lose our moderate allies. Because, after all, we do have muscles to flex and levers we can pull ($, mobilization, media, targeting someone). So we should.

davidcaryhart: We need to be feared by politicians but loved by the general public. Winning hearts and minds is important to equality.

weaverron: Let's see, since a minority GOP has more power than a majority DEM party, maybe we should court the GOP with our money.

peterkoltak: that's what Machiavelli would say!

marcslove: absolutely. what minority ever achieved equal rights because they were loved or asked nicely?

uppityfag: Dems want us to fear their absence.  Why can't we - why wouldn't we - desire the same dynamic?  Works for them, right?

Your thoughts?

As others focus on the questions the military is asking troops, Log Cabin Republicans are focused on questions of another type, as the group's lawsuit challenging the "Don't Ask, Don't Tell" policy began its trial today. The government had been trying to delay the trial, but U.S. District Judge Virginia Phillips -- a Clinton appointee to the federal bench -- refused.

White & Case attorney Dan Woods is representing the plaintiffs in the case, which include Servicemembers United executive director Alex Nicholson, and Woods's opening statement strikes at the heart of the argument against DADT:

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 — if the subject arises, and they must live under constant threat of investigation and discharge if a hint of the truth is suspected. Our military excludes these men and women from service solely on the basis of status and conduct that is constitutionally protected  There is no legitimate basis for "don’t ask, don’t tell," and there never has been.

The government's opening statement lasted about 5 minutes, and the government plans to present no evidence, other than the legislative history for the policy, at trial.

Read the full opening statement from Woods below the jump.

Pentagon spokesman Geoff Morrell hit back hard on Monday afternoon against the claim alluded to at Talking Points Memo and circulating in the LGBT blogosphere over the weekend and into today that "segregation" is a possible outcome of the Pentagon working group's review of the "Don't Ask, Don't Tell" policy (and associated troop survey).

First, it's important to note what Megan Carpentier at TPM actually wrote:

In response to questions from reporters, Morrell clarified that the survey responses could lead the military to conclude that it would "perhaps need adjustments to facilities themselves," indicating that it is not outside the realm of possibility that, in order to preserve the privacy and modesty of heterosexual service members in group showers and barracks, the military would consider segregating gay and lesbian service members in some way.

By time John Aravosis got a hold of it this morning, here's how Megan's carefully couched claim -- that, from my review of my recording still overstates what Morrell said, which was that "facility adjustments" were a hypothetical possibility -- had been twisted:

Does the White House not understand that a black president cannot institute a policy of segregation? Apparently they don't.

The Pentagon confirmed on Friday that it is considering segregating gay troops, specifically with regards to creating separate showers and/or barracks for straight and gay troops.

Of course, that wasn't what Morrell said -- and it wasn't even what Carpentier wrote. But, it's what Aravosis told the LGBT community and his readers today.

The segregation portion of Morrell's interview with Think Progress blogger Igor Volsky:

MORRELL: So, when I was asked, about the, you know – this is in the context of “why are you even asking these questions?” – well, we’re asking these questions because in our engagements with the force thus far, this has been an area of some concern. Now we need to test it to see if that holds for—if it really reflects the concerns of the force, and which members of the force. Is it older members? Is it younger members? Are they, you know—which ones? And, and then along with this information, the working group will make some recommendations about how to deal with those concerns. It could be, as I said, who knows? This could be dealt with through education programs, through training programs, or it may require “facilities adjustments.” But no one, no one is considering “separate but equal” bathing or living facilities for you know, gay and straight troops. That’s just not ever a consideration.

Q: So that’s off the table.

MORRELL: Absolutely off the table.

The full interview is definitely worth checking out.

Interesting to note that Morrell went to the Center for American Progress blog -- Wonk Room is an arm of CAP's Think Progress blog -- to give the extended interview. CAP is one of the five organizations that was included in the White House discussions of the compromise that became the amendment voted on by the House and Senate Armed Services Committee at the end of May.

Following up from the Friday evening, July 9, news conference held by Pentagon spokesman Geoff Morrell, I believe many questions remain about the survey, its wording, potential bias and the sample size. If anything, Morrell raised more questions for me than when I started the call. (For example, Morrell says that the survey group, Westat, "had to know from us what we were trying to get at." If the "pros" devised this survey -- and Morrell's news conference shows the working group is backing it up -- then several questions are raised about what the working group is "trying to get at.")

In addition to the questions and answers discussed in my Metro Weekly article that followed the news conference, "Pentagon Pushes Back," I wanted to post the full answers to the primary questions relating to the polling.

One of the concerns raised is that this is a far greater sample size -- 400,000 -- than is necessary to get a scientifically valid sample.

GEOFF MORRELL: This is one of those that the Secretary decided based upoon his own judgment as necessary and my sense is that he did so out of an abundance of caution, out of an abundance of appreciation for the views of the force. He wants to make sure that they feel as though their voices have been heard. I don't believe anybody thinks there will be any harm done. I've never heard of any harm being done by getting more information rather than less information.

QUESTION: What if 49% of respondents say they have a problem with taking showers with an openly gay or lesbian servicemember? How will that affect what – how the Department changes current facilities? How will you assess that information? Just getting a number of people who have concerns about this doesn’t seem to lead you in any direction.

MORRELL: I’m not a statistician, but my sense is that there are 103 questions here. Pollsters, based upon the sampling that we’ve put together, will be able to derive more from the answers than just that there is X number who have issues with the showering situation.

And, I would point you to the fact that – you don’t have it in front of you, I know – but the question about showering, for example, or living, for example, is not an either/or, but there are gradations – it a subjective – it requires a subjective answer. So, we’ll be able to glean from the answers provided more about the attitudes.

In addition, based upon all the questions that preceded it – demographics, experience and so forth – we’ll be able to get a sense of who it is that’s concerned about this. Are there younger members? Less experienced members? Is it the older force? Are they married? Are they single? Do they have families?

All of this will help our collective wisdom about the situation, and then we’ll make judgments – the working group will – and this is where the hard part comes in: Armed with all this information, what do we do when repeal takes place to prepare the force for that?

Does it require more education? Does it require more training? Does it require, as I mentioned before, adjustments to facilities? We don’t know any of that yet. That’s why we need to find out conclusively, through this scientific survey.

QUESTION: Who came up with the questions? Was it DOD? In consultation with this firm? Did the firm do this on its own? How did they come up with this?

MORRELL: It was a collaborative process. But obviously we hired professionals for a reason. We obviously contributed to this. They had to know from us what we were trying to get at. They’re very familiar with the mandate of the working group, and what they’re responsibility is. In a collaborative process, the questions were devised. They’re the pros. They know based upon our needs what the questions are they need to ask in order to help us arrive at the information we need.

[UPDATE: The Pentagon held a news conference for reporters regarding the survey at 4:15 p.m. Friday afternoon. My report, "Pentagon Pushes Back," details what was -- and wasn't -- said.]

The dueling responses of LGBT groups to the Pentagon survey relating to the "Don't Ask, Don't Tell" policy continued on Friday following the release of at least 32 pages of the survey by the Palm Center. Servicemembers United and Servicemembers Legal Defense Network continue to recommend conflicting advice to gay, lesbian and bisexual servicemembers. SLDN is the only group to recommend against LGB servicemember participation in the survey.

SU executive director Alex Nicholson:

"While it remains safe for gay and lesbian troops to participate in this survey, it is simply impossible to imagine a survey with such derogatory and insulting wording, assumptions, and insinuations going out about any other minority group in the military."

SLDN executive director Aubrey Sarvis:

"As a legal services group, our focus is on ensuring adequate legal protections for those gay and lesbian service members that participate in the surveys.  We continue to have discussions with DOD and are working to make sure gay and lesbian service members are protected.  At this time, our warning stands that gay and lesbian service members should not take the survey unless adequate legal protections are put in place.

Download a copy of the survey -- which The Washington Post reports that the Pentagon says is incomplete -- released by the Palm Center:

2010-DoD-Comprehensive-Review-Survey-of-Uniformed-Active-Duty-and-Reserve-Service-Members.pdf

[Updated; originally posted at 4:35 p.m.]

U.S. District Court Judge Joseph Tauro, appointed to the federal bench in 1972, ruled this afternoon in Gill v. Office of Personnel Management that Section 3 of the Defense of Marriage Act violates the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment to the U.S. Constitution. A companion decision in Massachusetts v. U.S. Dep't of Health and Human Services also was issued, with Tauro finding that DOMA also violates the Tenth Amendment and the Spending Clause of the Constitution.

The Gill ruling: 2010-07-08-gill-district-court-decision.pdf

The Massachusetts ruling: 2010-07-08-massachusetts-district-court-decision.pdf

* * *

Section 3 of DOMA defines "marriage" and "spouse" at the federal level as constituting only opposite-sex couples. It reads:

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

The Gill case, which was filed first by Gay & Lesbian Advocates & Defenders, is unique because it challenged not the right of same-sex couples to marry, but the discrimination faced by same-sex couples who were legally married in Massachusetts but are treated differently than opposite-sex married couples by the federal government. The case points to health and retirement benefits of federal employees and their same-sex spouses or, in one case, the widow of a former federal employee. It also challenges diffential tax treatment faced by same-sex couples.

Tauro wrote a very strong equal protection opinion, finding:

This court need not address these arguments [about whether strict scrutiny should apply in this case], however, because DOMA fails to pass  constitutional muster even under the highly deferential rational basis test. As set forth in detail  below, this court is convinced that “there exists no fairly conceivable set of facts that could  ground a rational relationship” between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection.

The Massachusetts challenge, brought by state Attorney General Martha Coakley (D), adresses specific problems faced by the state of Massachusetts because of the federal prohibition on recognition of the same-sex marriages legally entered into in the state. In Judge Tauro's decision in the Massachusetts case, he found that -- in addition to equal protection principles -- DOMA violated the Tenth Amendment and the Spending Clause of the U.S. Constitution. In part, he writes:

That DOMA plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens—also convinces this court that the statute violates the Tenth  Amendment.

The decisions appear to be a broad validation of Massachusetts and GLAD's arguments and are certain to set up a more difficult appeal than had Judge Tauro only found one ground to strike down Section 3.

In fact, Tauro's parting words in Gill, set up just how difficult he believes that an appeal should be:

As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Section 2, which purports to give states the authority to refuse to recognize same-sex marriages legally entered into in other states, is not at issue in either of the cases.

As to why the Fifth Amendment is implicated, it is how the Equal Protection Clause of the Fourteenth Amendment is applied to the federal government. Sometimes referred to as "reverse incorporation," it is the opposite of incorporation -- or application -- of the Bill of Rights to the states through the Fourteenth Amendment. Incorporation was the reason why the U.S. Supreme Court found the Fourteenth Amendment to require that the Second Amendment be applied to the states in last week's decision regarding Chicago's gun law.

It would be very unlikely that the federal government would not appeal the ruling in this case. GLAD's Mary Bonauto concurred on a conference call following the ruling: "I fully expect the government will appeal." Such a move, however, is likely to subject President Obama to criticism from some quarters.

[UPDATE: Drew Hammill, Speaker Nancy Pelosi's spokesman, issued the following statement:

"The Speaker strongly supports today's ruling that the Defense of Marriage Act violates the Constitutional guarantee of equal protection. We must continue to work against division and distraction in our country, and work toward the day when all American families are treated equally."

More will be forthcoming ...]

[UPDATE: Please refer to "Questions' Quagmire" for a full article on this issue, in which the Human Rights Campaign and Palm Center do not take the same position as SLDN on the survey. In addition, at the bottom of this post, please note the Log Cabin Republicans and Servicemembers United statements, which encourage servicemembers to fill out the survey.]

The Department of Defense (DOD) mailed out 400,000 surveys to servicemembers on Wednesday, July 7, with half going to active servicemembers and the other half going to those in reserve units, asking them questions relating to the “Don’t Ask, Don’t Tell” policy and how they would react to out gay service.

Since DOD General Counsel Jeh Johnson and U.S. Army Gen. Carter Ham were named by Defense Secretary Robert Gates to head the Pentagon working group that planned the survey, questions have been raised – by members of Congress and leaders of LGBT advocacy groups – about whether the continued enforcement of DADT would impact the response rates of LGB servicemembers.

Although a DOD “American Forces Press Service” report notes that servicemembers will initially have to log in using their common access card, or CAC, to a non-confidential site, they will then have the opportunity to get an “untraceable PIN number they then can use to log on from any computer.”

According to the American Forces Press Service report, “This tool will allow gay and lesbian servicemembers to remain anonymous and establish confidential communication, Ham explained.”

Despite this claimed safeguard, Servicemembers Legal Defense Network – which has long advocated for open service and defended servicemembers threatened with DADT discharges in court – raised a potentially significant roadblock to the working group on Thursday morning, July 8.

“At this time SLDN cannot recommend that lesbian, gay, or bisexual service members participate in any survey being administered by the Department of Defense, the Pentagon Working Group, or any third-party contractors,” SLDN executive director Aubrey Sarvis said in the release statement. “While the surveys are apparently designed to protect the individual's privacy, there is no guarantee of privacy and DOD has not agreed to provide immunity to service members whose privacy may be inadvertently violated or who inadvertently outs himself or herself.”

SLDN said in the statement that it had sought information from DOD about the “text of the surveys, more information on possible certificates of confidentiality, and whether DOD or [the working group] could guarantee immunity from DADT and other armed services rules and regulations for service members who are inadvertently ‘outed’ by the surveys.”

SLDN spokesman Trevor Thomas wrote in an email to Metro Weekly, “We did not hear back from the Pentagon on the above. We continue to wait for the information so that we can make an informed decision [about whether gay, lesbian and bisexual servicemembers should respond to the survey].”

The American Forces Press Service also reports that Ham said "150,000 surveys will be mailed to military spouses by the end of the month." Although both Ham and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, have discussed the importance of family input, it had not previously been disclosed the specifics and the extent to which the military would be seeking spouses' opinions. Due to DADT, the "spouses," it is presumed, only would include opposite-sex spouses.

[UPDATE: From a statement by Servicemembers United executive director Alex Nicholson:

 "While Servicemembers United remains concerned about unintentional bias in the question wording within this survey, we are satisfied that sufficient measures are in place to protect the confidentiality of any gay and lesbian servicemember who would like to fully and honestly participate in this survey."

In addition, Log Cabin's R. Clarke Cooper said in a statement:

"I am a current Army Reservist and will be completing the DOD survey with my CAC log on. Not doing the survey abdicates terrain to those who want to keep DADT in place."

Thus far, SLDN is the only LGBT group to urge lesbian, gay and bisexual servicemembers not to fill out the survey.

An inquiry for information from the Pentagon has not been returned.]

Calling it "marriage by another name," Hawaii Gov. Linda Lingle (R) today announced that she would veto the state's civil union bill, passed earlier this year by the legislature. Despite that, Lingle said at the news conference that "[i]t would be a mistake to allow a decision of this magnitude to be made by one individual."

Freedom to Marry's Evan Wolfson -- who was in Hawaii in the early '90s working on Bauer v. Lewin, which began the modern marriage equality movement -- issued the following statement:

"In the 1990s, Hawaii began the ongoing international movement toward ending gay couples’ exclusion from marriage and was the first U.S. state to create a legal status to provide some state-level recognition and protections for same-sex couples.  In the historic Baehr case, the Hawaii Supreme Court acknowledged a constitutional mandate to treat same-sex couples equally.  Governor Lingle’s decision to veto the civil union bill is deeply disappointing and unnecessarily delays Hawaii’s journey toward fairness and equality.  Governor Lingle has rejected the will of the state legislature and the advice of countless business and faith leaders and turned her back on the committed couples and Hawaii kin who have expressed their support for this measure.  Freedom to Marry urges the Hawaii state legislature to overrule Governor Lingle’s veto and take an important step toward fairness and equal protection for same-sex couples in Hawaii."

Following up on the question raised -- and unanswered -- at the July 1 LGBT media briefing with White House domestic policy adviser Melody Barnes regarding whether the President Obama believes the Defense of Marriage Act is constitutional, I wrote this follow-up piece, which was featured today at The Huffington Post: "Answer the Question." In it, I write:

Although the Justice Department may be obligated to defend validly enacted laws, its decision regarding whether there is any legitimate ground for defending the constitutionality of a law like DOMA has no bearing on whether the president personally believes the law is constitutional or not.

This question, our constitutional scholar president knows, is different even from his view of whether he personally supports marriage equality. It is a question of his views of our nation's constitutional protections. Obama owes the LGBT community -- and the nation -- an answer about whether he believes DOMA unconstitutionally restricts the equal rights of same-sex couples.

Check it out.

When "doom" appears in a headline these days, you know that we're either talking about the Gulf -- or an overheated political argument. The Washington Post's Jonathan Capehart, who I would call an amiable acquaintance, went with the latter this morning, in "Could impending Prop 8 decision doom same-sex marriage?"

In writing about marriage and the Proposition 8 case currently being considered by U.S. District Judge Vaughn Walker, Capehart overshoots with his otherwise legitimate concerns -- concerns which he is not alone in holding. Capehart writes about the evolution of sodomy laws in the U.S. from the Supreme Court 1986 case of Bowers v. Hardwick, in which the court upheld Georgia's sodomy law, to 2003's Lawrence v. Texas, which struck down Tesas's sodomy law. He writes that "the Court in the Lawrence case also noted that society was moving away from criminalizing the consensual intimate relationships of same-sex couples."

In doing so, however, Capehart misses the key passage in Lawrence from Justice Anthony Kennedy's majority opinion:

The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:

“Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.

The Supreme Court, Kennedy acknowledged, was not correct to uphold Georgia's sodomy even when it did so because it was wrong, under the U.S. Constitution, to uphold Georgia's sodomy law -- regardless of what the voters or lawmakers of Georgia thought. 

That is not, of course, a decision in this matter, but it is a sign that Justice Kennedy, whose vote on the current court likely would be key to any marriage ruling, does not believe that some magic number of states need to support a right before the Constitution should be seen as protecting it.

So, despite Capehart's gloom and doom about what the current state of marriage equality in this country could mean for the aftermath of the Proposition 8 case -- I do not share his secondary concern about the possibility of a constitutional amendment in the wake of a decision striking down Proposition 8 -- Justice Kennedy himself, in 2003, gave some insight as to his answer to Capehart's primary concern.

It wasn't the rockets' red glare tonight, but all the colors of the fireworks over the National Mall that kept the District's attention as the night fell on Sunday evening, July 4.

Remembering the parchment-based beginnings of this day, however, also is important. Here's the National Archives page about the Declaration of Independence, which begins:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Happy Birthday, America.

GOProud has joined with several other Republicans -- including, as reported by Politico, former National Republican Congressional Committee chair Rep. Tom Cole (R-Okla.)  -- in calling for Republican National Committee Chair Michael Steele to step down following comments about the war in Afghanistan being captured on tape.

In the comments, Steele called the current war there "a war of Obama's choosing" and asked if President Obama knew "that's the one thing you don't do, is engage in a land war in Afghanistan? All right, because everyone who has tried over a thousand years of history has failed, and there are reasons for that."

In the GOProud release, Christopher Barron, GOProud's board chairman, said:

“Chairman Steele shouldn’t need to be reminded that the war in Afghanistan was not a ‘war of Obama’s choosing.’  The Chairman of the RNC shouldn’t need to be reminded that it was terrorists operating from bases in Afghanistan who started this war on September 11, 2001.

“Michael Steele is dead wrong; the war in Afghanistan is not lost.  What is lost, however, is any shred of confidence that conservatives can have in his leadership at the RNC."

The full release can be found below the jump.

There was much more -- at least, in the way of reporting -- from the Thursday, July 1, meeting between White House Domestic Policy Adviser Melody Barnes and nine representatives from the LGBT media, including Metro Weekly.

My second report -- "The Constitutional Question" -- looks at discussion of the White House and President Obama's position on the Defense of Marriage Act:

The journalists at the meeting raised the issue at several points throughout the briefing, finally zeroing in on a fairly nuanced, but important, question of whether the administration regards the law as merely discriminatory, or whether it finds it to be unconstitutional.

Other reports from the meeting included Pam's House Blend's Pam Spaulding, who noted:

Short version: Nothing new was learned, despite numerous attempts to get substantive answers about administration policy; move along to the next PHB post.

The Advocate's Kerry Eleveld summarized several of the questions and answers here, focusing in on the lack of movement on the marriage front. Finally, for now, Joe Sudbay at AmericaBlog wrote of one interesting note that came up near the end of the meeting:

And, you'll want to know that while there isn't a high ranking LGBT official in the White House, there are a number of high ranking administration officials to whom LGBT issues are very important. Among those high ranking officials identified by Barnes are [Chief of Staff] Rahm Emanuel and [Deputy Chief of Staff] Jim Messina. Yes, we're in good hands.

The other two she named were Senior Adviser Valerie Jarrett and herself.

The first Metro Weekly Poliglot report on the meeting can be found here.

From The New York Times Magazine this weekend comes a lengthy profile -- "This Year's Maverick" -- of Sen. Lindsey Graham (R-S.C.). Graham has been beset by "gay rumors" -- from the Tea Party to tea dances -- and he takes the opportunity of Robert Draper's profile to squarely address the rumors in a way that The Washington Post's Jonathan Capehart calls "a stellar response." The exchange:

Less tame are the blogosphere monikers, like “Miss Lindsey,” that play off of Graham’s never-married status. During a South Carolina Tea Party rally this spring, one speaker created an uproar by postulating that Graham supported a guest-worker program out of fear that the Democrats might otherwise expose his homosexuality. (Graham smirked when I brought this up. “Like maybe I’m having a clandestine affair with Ricky Martin,” he said. “I know it’s really gonna upset a lot of gay men — I’m sure hundreds of ’em are gonna be jumping off the Golden Gate Bridge — but I ain’t available. I ain’t gay. Sorry.”)

Though Capehart writes that he had "better pack [his] bags for San Francisco," I'll stay in the District to watch for more maverick-y moves from South Carolina's senior senator.

Today, Metro Weekly, along with eight other LGBT media outlets, attended a briefing on LGBT issues by White House Domestic Policy Adviser Melody Barnes. White House spokesman Shin Inouye, Office of Public Engagement deputy director Brian Bond and deputy associate White House Counsel Ian Bassin also attended the meeting, which lasted a little more than an hour, although they did not actively participate in the question-and-answer session.

The meeting was not intended to present us with new developments or legislative strategies, but it was an opportunity for those of us covering the White House's actions to have an extended discussion with one of the most senior people in the administration responsible for advising President Obama on many, if not most, LGBT issues.

The result was a more expansive understanding of how LGBT issues are handled in the White House -- but it was not an altogether satisfying experience.

Jillian Weiss, a professor of law and society, attended on behalf of The Bilerico Project and writes of the meeting, "I don't feel like I walked out with any more information than I walked in with. I already knew that the President was letting the legislative branch get away with ignoring LGBT rights."

Although I will be writing more later, one of the two primary pieces of news to come out of the meeting, to the extent there was any, was a disconcerting one regarding the administration's position on the upcoming Senate consideration of the National Defense Authorization Act, which currently includes the "Don't Ask, Don't Tell" amendment passed by the House and the Senate Armed Services Committee.

Barnes was asked by AmericaBlog's Joe Sudbay about potential Senate floor amendments that would "change the certification process for the repeal of 10 U.S.C. 654 -- the law that is DADT. "Will the White House actively oppose any amendments" like that?

Barnes's response:

What I can tell you is that when we see any amendments that are filed, that we will continue to do what we did through the process in the House, which is, work to move this forward. Obviously if there is an effort to undermine repeal of "Don't Ask, Don't Tell" the president will fight -- wouldn't be supportive of that. At the same time, I can't sit here and walk through hypotheticals for amendments that I haven't seen or that haven't been filed.

The key contained in Barnes's answer is the difference between whether the White House would "fight" such an amendment, which Sudbay called a "killer amendment," or merely not "be supportive of that." Barnes's immediate correction, for whatever reason, captured the concern that LGBT advocates have expressed with the administration perfectly.

It is, in fact, the difference between being a "fierce advocate" and not.

Today, the Human Rights Campaign announced its endorsement of Solicitor General Elena Kagan for the Supreme Court. From HRC:

“Elena Kagan has demonstrated her understanding of the Constitution and the protections it provides all Americans” said Joe Solmonese, president of the Human Rights Campaign. “She has articulated a commitment to the substantive protections of liberty guaranteed by the Constitution – an issue of the utmost importance to the LGBT community. We are confident that Elena Kagan is well qualified to become our nation’s next Supreme Court justice.”

“We are impressed by Elena Kagan’s passionate criticism of the discriminatory ‘Don’t Ask, Don’t Tell’ law, her support of LGBT students while Dean of Harvard Law School and her involvement in LGBT issues during her tenure as part of the Clinton White House,” said Solmonese. “Elena Kagan’s record indicates she may be more familiar with how laws and policies affect the LGBT community than any individual previously nominated to serve on the Supreme Court.”

Follow other developments in the Kagan nomination hearings, which are still ongoing, here at Metro Weekly's Poliglot. The full release is below the jump.