Photo: House Speaker Nancy Pelosi addresses the crowd at the Victory Fund's Gay & Lesbian Leadership Awards, where she was the honored guest. (Photo by Chris Geidner.)

House Speaker Nancy Pelosi (D-Calif.) was optimistic about the end of the military's ban on gay and lesbian service, saying on Wednesday night, "'Don't Ask, Don't Tell' will be gone by the end of the year. It will just be a sad memory." This, she said, despite last week's vote in the Senate against bringing the bill containing repeal language to the floor for debate.

Talking about "the pain [DADT] has caused people," Pelosi told the crowd at the Victory Fund's 10th annual Gay & Lesbian Leadership Awards that "some are here tonight who served in our military. ... Because of the courage of some of them, this will be gone by the end of the year."

Pelosi was introduced by Reps. Barney Frank (D-Mass.) and Tammy Baldwin (D-Wisc.), who had been, in turn, introduced by Victory Fund president Chuck Wolfe.

Her comments, however, about the Employment Non-Discrimination Act -- a bill sponsored by Frank -- were far more equivocal.

Pelosi -- whose decision not to bring ENDA the House floor for a vote has led to multiple occasions in which people were arrested for protesting that inaction -- on Wednesday said that the upcoming mid-term elections were essential to moving forward the bill outlawing anti-LGBT job discrimination.

"[A] lot is riding on this election," she told the crowd gathered at the W Hotel's main ballroom on Wednesday evening. "And part of the choice that will be made will either accelerate the pace of passing ENDA or set us back, and we have to realize that. We have to realize that."

For the co-director of Get Equal, the organization involved in those protests of Pelosi, tonight's speech was about leadership -- but more about, in Robin McGehee's view, Pelosi's lack of leadership on the bill.

Talking to Metro Weekly, McGehee said, "Leadership is about doing the right thing, not the politically safe thing. What I heard her saying is that even with controlling both chambers of Congress and having a Democratic president -- even with all of that -- her leadership has not been able to get ENDA passed out of committee and onto the floor.

"I don't want to have a Republican-dominated Congress. But I also don't believe we're the only progressive community dissatisfied with the lack of leadership," McGehee said. "I feel like she's punting on our position and our rights and yet asking us to give, and I'll give when we get equal. I'll vote for her, but I'm not going to give money or time."

Photo: Rep. Barney Frank introduces honoree House Speaker Nancy Pelosi at the Victory Fund's Gay & Lesbian Leadership Awards. (Photo by Chris Geidner.)

Photo: Former Air Force Major Margaret Witt, Washington National Guard Col. Margarethe Cammermeyer (Ret.) and Air Force Lt. Col. Victor Fehrenbach in March 2010 at the annual dinner held by Servicemembers Legal Defense Network. (Photo by Chris Geidner.)

Air Force Reserve Major Margaret Witt -- discharged under the military's "Don't Ask, Don't Tell" policy -- has won reinstatement in her case challenging that dismissal.

U.S. District Judge Ronald Leighton ruled on Friday afternoon that the discharge of Witt under DADT violated her constitutional rights. He wrote:

[T]he Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and  cohesion. If DADT does not significantly further an important government interest ... it cannot be necessary to further that interest .... Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.  She should be reinstated at the earliest possible moment.

As noted by the Seattle Times, the decision "marks the first time since Congress approved the policy in 1993 that a federal judge has ordered the military to allow an openly gay service member to serve in the armed forces."

Today's decision came about following a hearing conducted earlier this month by Leighton that resulted from an earlier decision in Witt's case by the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit, Witt's lawyers argued and the judge agreed, ordered a more individualized inquiry into whether her particular discharge would advance the government's claimed justifications for the continued enforcement of DADT.

The news came just hours after 69 members of the U.S. House of Representatives cited Witt's case as an example of the damage done to the military because of DADT. In a letter urging President Obama not to appeal another case in which the judge struck down DADT as unconstitutional, the members of Congress noted that "Air Force Reserve Major Margaret Witt is one of those talented defenders of peace who has suffered at the hand of the DADT policy."

The Seattle Times noted that Judge Leighton, in his ruling, agreed:

"Good flight nurses are hard to find," said Leighton, who found that the evidence presented at the trial showed Witt's reinstatement "... would not adversely affect unit morale or cohesion" in her unit. 

The judge also hailed Witt for her role "... in a long-term, highly-charged civil rights movement. Today, you have won a victory in that struggle."

Alex Nicholson, the head of Servicemembers United, was quick to praise the ruling.

"Yet another judge has taken yet another righteous, historic, and courageous stand against a discriminatory and unconstitutional law," he said in a statement. "Major Witt's case is a clear-cut one in which her discharge itself actually harmed unit cohesion, morale, and combat readiness."

The Human Rights Campaign, however, focused on the fact that the individualized inquiry ordered by the U.S. Court of Appeals for the Ninth Circuit in Witt's case only applies in that circuit. In the rest of the country, no individualized showing is required.

HRC President Joe Solmonese said in a statement, "Had Major Witt been discharged in any other circuit in the country, she would not had her day in court.  It is time for Congress and the Administration to recognize that his failed law should be removed from the books once and for all."

The White House directed questions about the ruling to the Department of Justice.

Aubrey Sarvis, the head of Servicemembers Legal Defense Network, also pushed for Senate action to repeal DADT in his statement.

"It is only a matter of time before this happens throughout the armed forces, but these cases are slowly working their way through the legal process and it could well be years before there is finality in the courts," he said. "The favorable Witt decision, like the Log Cabin Republicans ruling, only underscores the urgent need for the Senate to take up repeal in the lame duck session."

Read the ruling here: Witt.pdf

[Thanks to the Think Progress Wonk Room for providing the ruling.]

Progressive members of the U.S. House of Representatives today took a stand in the ongoing court case challenging the military's "Don't Ask, Don't Tell" policy.

In a letter led off by the signatures of the three out gay members of Congress, 69 members of the House today asked President Obama to "take this opportunity to restore integrity to our military and decline to appeal Judge Phillips' ruling" in Log Cabin Republicans v. United States.

The letter authored and circulated by Rep. Jared Polis (D-Colo.) discussed the September 9th court ruling, the case of Air Force Reserve Major Margaret Witt and a 2010 Williams Institute report concluding that approximately 66,000 gay and lesbian people cerrently serve under DADT.

The mention of Witt's case is not likely accidental, as the judge overseeing her challenge to a DADT discharge has said that he would rule in her case today.

Two key paragraphs from the letter:

“Mr. President, in this critical time when military readiness is paramount we must recognize the importance of every linguist, flight nurse and infantryman. As you announced our official end of combat operations in Iraq, we must prepare for what is to come. To stay above the rest, to remain the most formidable military force in the world, we must innovate, change and grow. As we update our weaponry and strategy, so too must we open our policy to encourage as much cohesiveness and camaraderie as possible. In the military where lives rely on trust and determination, DADT represents neither.”

“We consider this matter a top priority to our service members, the American people and the security of the United States. We acknowledge and appreciate your support and hope that together we can end this dishonorable policy once and for all. We hope that you, as the Commander-in-Chief of the Armed Services, will take this opportunity to restore integrity to our military and decline to appeal Judge Phillips’ ruling.”

The letter comes the day after the Justice Department filed its objections to the injunction requested by LCR in the case, which calls for a complete halt to enforcement of DADT against all servicemembers.

Download the letter here: 9-23_DADT_appeal_letter.pdf

Following Thursday's Facebook outage, Fabulis -- the gay site launched earlier this year -- sent an email message to its users today.

To say it was pointed would be an understatement. It also made clear some of the underlying purpose -- at least in founder and CEO Jason Goldberg's mind -- for the site, which at this time primarily involves the user rankings of other site users, questions answered by users and a calendar of events. Goldberg wrote:

[W]e utilize Facebook Connect here at http://fabulis.com for user logins and for other critical features on our site. Thankfully, Facebook's shutdown did not bring down fabulis, but it did cause some behind the scenes hiccups on our side.

As you can imagine, we are considering our ongoing Facebook dependencies in light of this incident.  We have relied on Facebook Connect as our primary account service thus far because it helped us start fabulis with real users with real names, real friends, and real pics (with clothes on), vs. being a site full of anonymous people with shirtless pics. This was important for setting the proper tone on fabulis as the gay social network that's not just about hookups.

So, take that, Mark Zuckerberg.

Also -- apparently -- take that, Manhunt, Adam4Adam, Grindr, etc. Fabulis, you see, has set the "proper tone." Meow!

U.S. District Judge Virginia Phillips should not issue an injunction halting all enforcement of the military's "Don't Ask, Don't Tell" policy because the United States is "not a typical defendant," DADT has been upheld by other courts, and DADT is a law relating to the military, according to a court filing made by the Justice Department this evening.

Because of these and other considerations, trial attorney Paul G. Freeborne wrote for the Department of Justice, the proposed order that Log Cabin Republicans has asked Phillips to enter halting all enforcement of DADT is "untenable." Instead, the filing states, "this Court should limit relief to current LCR members."

Phillips -- following her ruling on September 9 in LCR v. United States that DADT is unconstitutional -- asked LCR to provide her with a proposed judgment enforcing her ruling and the government to respond to that proposed judgment by submitting its objections.

The government's filing is broad, criticizing LCR's request for a total injunction of the law (as opposed to one just covering LCR's members) despite the fact that Phillips's opinion acknowledged the challenge to the statute was a facial one. Phillips, explaining such a challenge, wrote in the opinion, "a plaintiff challenging the validity of a law on its face must establish that 'no set of circumstances exists under which the Act would be valid.'"

Although perfectly sensible from a legal standard, the most striking paragraph in the brief is when the government discusses LCR's request that the government be prohibited from discriminating on the basis of sexual orientation against servicemembers. The filing states:

Plaintiff’s proposed injunction also attempts to sweep broadly to include not only DADT, but to bring within this Court’s judgment (and contempt power) any claim in which any employee of the United States government is alleged to have taken action based upon a servicemember’s (or a prospective servicemember’s) sexual orientation.  Because plaintiff has only challenged DADT, any injunction must necessarily be limited to the DADT statute.

LCR only challenged the discriminatory law and policy, in other words, not all discrimination.

The government also argued that "the Court should defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches."

This is not an appeal. It does not contain a notice of appeal and does not state that there will be an appeal. It does, however, make an appeal appear to be a foregone conclusion, with the filing stating that "the interim invalidation of a statute itself causes recognized injury warranting a stay." This "interim invalidation" language -- and the cases then cited by the government in support of that proposiiton -- strongly suggest that an appeal is forthcoming.

Following the filing, White House spokesman Robert Gibbs released the following statement:

Today, the Department of Justice made a filing in a legal challenge to the Don’t Ask, Don’t tell (DADT) policy, as it traditionally does when acts of Congress are challenged.  This filing in no way diminishes the President’s firm commitment to achieve a legislative repeal of DADT – indeed, it clearly shows why Congress must act to end this misguided policy.   The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold.  The President spoke out against DADT in his first State of the Union Address, and the Secretary of Defense and the Chairman of the Joint Chiefs have both testified in support of repeal.   And the Department of Defense continues to work on a plan on how to implement repeal.  The President, along with his Administration, will continue to work with the Senate Leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall.

R. Clarke Cooper, the executive director of LCR, released the following statement:

"We are not surprised by this but we are extremely disappointed with the Obama Administration. Many times on the campaign trail, President Obama said he would support the repeal of 'Don't Ask, Don't Tell.' Now that it's time to step up to the plate, he isn't even in the ballpark." 

The government's filing: Defendants Objections to Proposed Judgment.pdf

I took the opportunity on Wednesday to head up to New York City to see Angels in America, Part 2: Perestroika, staged by the Signature Theatre Company. The tickets, purchased at the beginning of August, were among the only days with seats remaining for the initial run of the show, so I jumped at the chance to see the first New York production of the show since its original staging.

I had no idea at the time, however, that the show would be the day after the unsuccessful Senate vote relating to the repeal of "Don't Ask, Don't Tell" or the day of the Florida appellate court ruling striking down the gay adoption ban. I also had no idea at the time that multiple high-profile events of interest to the LGBT community would be happening up and down the East Coast as I sat in the theater.

Luckily, others didn't have tickets for the show!

Of the first of many happenings, Corey Johnson writes at Towleroad:

Tonight I attended a highly anticipated fundraiser for the American Foundation for Equal Rights (AFER) in New York City at the Mandarin Oriental in the Time Warner Center. The fundraiser was co-chaired by former Republican National Committee Chair/Kohlberg Kravis & Roberts partner Ken Mehlman, Paypal Co-Founder Peter Thiel and Elliott Management hedge fund CEO Paul Singer.

The AFER event, Johnson reports, raised more than $1 million for the organization fighting Proposition 8 in federal court.

It wasn't just AFER and theater in NYC, as the NAACP head visited the LGBT Community Center and Michael Lavers wrote for EDGE on the Net:

NAACP President Benjamin Todd Jealous urged LGBT Americans to participate in an Oct. 2 march in Washington, D.C., that organizers hope will spur lawmakers to address unemployment, education and social justice. The Human Rights Campaign, the National Black Justice Coalition, GetEQUAL, Equality Wisconsin and the National Center for Transgender Equality are among the myriad of LGBT, labor and other progressive organizations that have endorsed the march.

Finally, back in the District, the Log Cabin Republicans held their national dinner, an event that was supposed to include and honor both Sen. John Cornyn (R-Tex.) and Rep. Pete Sessions (R-Tex.).

According to The Hill:

[O]n Wednesday night, nearly 200 Republicans – many openly gay – sporting “Fire Pelosi” buttons gathered to support the five House Republicans’ bid for reelection this November.

Yet:

Neither Cornyn, the chairman of the National Republican Senatorial Committee, nor Sessions, the chairman of the National Republican Congressional Committee, appeared in person to accept their awards.

[UPDATE: I am informed by an LCR official that "Senator Cornyn did attend the pre-dinner PAC reception."]

I am now on my way back to D.C. -- where I am sure I will be met with more newsworthy information.

From the Wonk Room to Towleroad and from The Washington Post to Mediaite and The Rachel Maddow Show, the exchange between The Advocate's Kerry Eleveld, me and Sen. John McCain (R-Ariz.) has made the rounds.

Although that exchange clearly merits note and reflection, what's not been getting the attention it deserves is another comment made McCain in the news conference that I point out in my report on today's happenings. From my report:

[W]hen asked about his previous concern about passing legislation prior to the conclusion of the Pentagon's implementation review, [McCain said,] ''I'm also very concerned about this survey itself. This survey itself is how to best implement repeal. What we really need is a survey that says what would be the effect on battle readiness, morale and recruitment.''

When asked by Metro Weekly to clarify those remarks, McCain pulled back somewhat, saying, ''Obviously, I need to know how this survey was conducted, I need to know how complete it was, I need to know all of the aspects of it, and that's how I've always operated and how I'll continue to operate.''

This is important, and cannot be lost in the stream of Harry Reid-bashing that is the expected cry from many today.

This statement -- one that McCain tried to pull back when questioned further about it -- showed McCain's hand. This is the plan of attack for a Republican-run Senate should their fortunes this November so dictate.

Once the Pentagon implementation review is done, McCain and his fellow Republicans will not be happy waiting for the review because that would no longer stall repeal. At that point, they -- McCain told reporters today -- will move on to attacking "this survey itself."

The White House has issued a Statement of Administration Policy regarding the consideration of the National Defense Authorization Act.

In relevant part, it notes:

Policy Concerning Homosexuality in the Armed Forces: The Administration supports section 591 as it would allow for completion of the Comprehensive Review, enable the Department of Defense to assess the results of the review, and ensure that the implementation of the repeal is consistent with the standards of military readiness, effectiveness, unit cohesion, recruiting and retention. Such an approach recognizes the critical need to allow our military and their families the full opportunity to inform and shape the implementation process through a thorough understanding of their concerns, insights and suggestions.

The SAP says the administration "supports" the DADT language. In another part of the SAP, the administration "strongly supports P.L. 111-195, the recently enacted comprehensive Iran sanctions legislation." Accordingly, stronger language could have, theoretically, been used. It should be noted, though, that the "strongly supports" mention references currently existing law and that no portion of the SAP "strongly supports" any of the proposed provisions of the NDAA.*

Read the full SAP here: SAP on S. 3454.pdf

* = This portion is updated to reflect further analysis of the SAP.

[UPDATED: Download a rough mp3 of Lady Gaga's speech here: America is the Prime Rib (Speech).mp3]

Lady Gaga takes her "Don't Ask, Don't Tell" repeal message to Maine, pushing for the votes of Sen. Susan Collins and Olympia Snowe -- two Republicans who have been considered among the most likely Republicans to support the repeal.

Watch here:

D.C.'s Omni Shoreham Hotel was, this weekend, the site of the "Value Voters Summit" -- a place where Rep. Mike Pence (R-Ind.) and former Gov. Mike Huckabee (R-Ark.) ran neck-and-neck to lead the 2012 presidential straw poll, where Delaware's "Tea Party" Senate candidate Christine O'Donnell (R) was greeted as a superstar and where panelists discussed how harmful repealing "Don't Ask, Don't Tell" would be.

The Family Research Council's Tony Perkins moderated a discussion on Friday with with Lt. Col. Robert Maginnis (Ret.) and Sgt. Brian Fleming, a veteran wounded in Afghanistan, that was less of a debate about DADT than it was a chance for the three men to give anecdotes and opinions about why repealing the law would lead to horrors. 

From MacGinnis's repetition of his earlier distorted claims about the impact of a repeal of DADT on chaplains to Fleming's claimed concerns about straight soldiers serving alongside gay soldiers (as if they don't already), there was nothing new to be heard in terms of the religious right's reasons why they think the policy should be kept.

At one point, though, Perkins somewhat oddly noted, "Homosexual immorality is also against the law in the military." To which Maginnis replied, "It's prosecuted all the time." Well, yes, DADT prosecutions do continue. But, it's not quite clear what point this was making -- other than that DADT remains in effect.

Then Fleming asserted, with no apparent evidence to back up his claim, that "I have no doubt that ... from my experience, the guys I served with, they would be very much against ending this policy, for all the reasons we've stated here today."

Finally, Perkins gave what he appeared to think was his strongest hit on DADT repeal efforts:

Each branch of the service has a chief general or admiral who is over that branch operationally. All four of them have spoken out in opposition to overturning this policy. It's only the president, secretary of defense and chairman of the Joint Chiefs -- who also were selected by the president.

If only that were an accurate depiction of the facts surrounding repeal consideration.

All four of the service chiefs gave testimony to Congress earlier this year about their views on the DADT law and policy. Their views differed from President Obama and from each other. They most definitely were not all in opposition to overturning the policy, with Navy Chief Adm. Gary Roughead specifically supporting the course of action laid out by Joint Chiefs chairman Adm. Mike Mullen. The others expressed concerns about the proposed repeal, but only Marine Corps Cmdt. James Conway has been wholly opposed to the repeal.

Moreover, the service branch secretaries were by and large supportive of the course laid out by Gates and Mullen. Perkins, of course, ignored that.

Regardless, the fact is that the service chiefs have expressed concern that verges from opposition to caution -- but caution is not opposition, despite how Perkins would like to play it.

Finally, although President Obama renominated both Gates and Mullen to their positions, the men originally were selected for the jobs by President George W. Bush, which makes Perkins's statement seem a little less than he would wish for it to be.

Senate Majority Leader Harry Reid (D-Nev.) today filed for cloture on the motion to proceed to debate the National Defense Authorization Act, which contains the amendment aimed at repealing the "Don't Ask, Don't Tell" policy, setting up a floor vote on the motion for Tuesday.

Reid's deputy communications director, Regan Lachapelle, told Metro Weekly in an email at 1:35 p.m., "Senator Reid did file cloture about 20 min[ute]s ago on the motion to proceed to the defense authorization bill." Because the Republican leadership refused unanimous consent to proceed on the bill, the threat of a filibuster means that cloture -- which requires 60 votes and ends any filibuster -- is required to debate the bill.

She continued, "We will vote on cloture on the motion to proceed to the bill next Tuesday at 2:15 p.m."

If 60 votes are obtained in Tuesday's vote, then debate on the NDAA will begin. This debate could include a motion to strike the DADT repeal provision or an amendment to change the specifics of the provision.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, urged that members of the group continue to call their senators to push for repeal. In a statement prior to the cloture filing, he said, "Our opponents will filibuster and we need to help Majority Leader Harry Reid and Chairman Carl Levin [(D-Mich.)] get the 60 votes they need.

"Sen. John McCain [(R-Ariz.)] has been a strong and vocal opponent from the start and it is critical that we beat back any filibuster threat, defeat attempts to strike repeal, and defeat any crippling amendments."

Earlier today, nine members of Get Equal and the Arizona group H.E.R.O. interrupted an unrelated Senate Armed Services Committee hearing to protest the opposition of McCain to the repeal of DADT, specifically his efforts to thwart the bill, according to a news release about the action. 

In the release, Robin McGehee, co-founder and director of Get Equal, said, "Senator John McCain is more interested in placating the McCain-Palin wing of the Republican party than he is in supporting our men and women in uniform. My advice to Senator McCain is that he spend a little more time learning about equality from his wife and daughter and a little less time listening to the extreme wing of his party."

Meanwhile, Servicemembers United also was holding its fall lobby day -- titled "The Final Assault" -- on Capitol Hill today, with executive director Alex Nicholson saying in a statement, "It's all hands on deck for us right now, and these citizen lobbyists are certainly doing their part in this fight."

NDAA debate also is expected to include consideration of the Development, Relief and Education for Alien Minors Act -- or DREAM Act -- a bill that is a portion of immigration reform efforts and would provide the ability for certain people to receive permanent residency status under certain conditions, included completion of school or military service.

Sen. Dick Durbin (D-Ill.) spoke about the DREAM Act on the floor of the U.S. Senate on Thursday afternoon, noting that Republican support will be needed for the Act to be added to the bill. He said, "I don't know how we, how my colleagues can continue to face these young people without at least trying."

Dana Beyer, who spoke with Metro Weekly this past week about her candidacy to become a member of the Maryland House of Delegates, was less than 800 votes away from becoming one of the three nominees for the Democratic nomination to the 18th District.

Coming in fourth in a six-way race, Beyer -- who was endorsed by the Victory Fund and would have been the first transgender member of the Maryland legislature -- fell to the three incumbents.

Speaking with Metro Weekly late Tuesday night, Beyer was at a loss.

"The people who said they were going to vote for me didn't vote for me, so I'm clueless as to what happened," she said. "But I had data, which I trusted, that told me I was going to win.

"Something went wrong."

Asked what went wrong, Beyer said she'd have to go through the results precinct by precinct to get a better picture of what had happened, but added, "I'm just gonna let it go for now. I'm gonna move on. But, it would be nice to know why."

That three incumbents won is not all that unusual in a system where incumbents do generally win, and Beyer was the highest vote-getter among the non-incumbents. When asked if she takes solace in being the next to get the nomination, Beyer said no.

"I set high standards," she said. "I don't take solace in coming fourth."

Beyer did, however, say that she took some solace in the fact that three other out, non-incumbent LGBT candidates running were running for Maryland legislative seats -- and some of them were likely to end this election night with a win.

The preliminary results from the 18th District:

• Atterbeary, Vanessa 2372 13.13%
• Beyer, Dana 2990 16.56%
• Carr, Al 3783 20.95%
• Gutierrez, Ana Sol 4390 24.31%
• Heney, Michael K. 552 3.06%
• Waldstreicher, Jeff 3974 22.00%

In an email to supporters, Senate Majority Leader Harry Reid announced his intention to take up the National Defense Authorization Act -- which contains language aimed at repealing "Don't Ask, Don't Tell" -- next week. Megan Jones with his campaign committee wrote, in part:

This afternoon, he informed Republicans that he intends to bring the Defense Authorization Bill--including "repeal of the "Don't Ask, Don't Tell" policy--to the Senate Floor next week.

This would overturn the decade-old policy that bars openly gay, lesbian or bisexual Americans from serving in our armed forces, and is an important step towards equal treatment of all Americans.
 
Senator Reid believes that Americans should not be denied the opportunity to serve their country just because of their sexual orientation.

In a statement provided to Metro Weekly, Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network, said:

The call refers to the likelihood that Republicans -- most notably Sen. John McCain (R-Ariz.) -- could push to refuse to allow the Senate to proceed in its consideration of the bill. Such refusal would require 60 votes in favor of proceeding on debate of the NDAA.

Sarvis went on:

"Repeal supporters should not stop calling their senators. Sen. John McCain has been a strong and vocal opponent from the start and it is critical that we beat back any filibuster threat, defeat attempts to strike repeal, and defeat any crippling amendments."

Alex Nicholson, executive director of Servicemembers United, was more confident. In a statement, he said:

"We are both pleased and relieved that Senator Reid has decided to schedule the defense authorization bill for floor time next week. We are fairly confident that we will have the 60 votes to break a filibuster of this bill. It would be shameful for lawmakers to vote to hold up an important and expansive piece of legislation like the defense authorization bill simply because of their opposition to one or two provisions within it."

Earlier today, Secretary of Health and Human Services Secretary Kathleen Sebelius addressed the 2010 United States Conference on AIDS in Orlando, Florida. In her speech she spoke about the progress made and challenges ahead in fighting HIV/AIDS.

In notable part, according to the prepared remarks, she said:

[I]n recent years, this progress has slowed.  While infection rates are still going down, new infections have stalled at around 50,000 a year for the last decade.  Among gay men, HIV incidence is actually rising.  And perhaps most disturbingly: at a time when then number of American living with HIV/AIDS is at an all time high, concern about the disease is falling rapidly.  In 1995, nearly half of all Americans said HIV/AIDS was our most pressing health issue.  Today, it’s just one in twenty.

In normal economic times, reversing these trends would be a stiff challenge.  During an economic downturn that has forced all of us, from the federal government to the neighborhood clinic, to do more with less, it will take an even bigger effort.  To regain momentum in our fight against HIV/AIDS, we will need to recapture that same sense of urgency and spirit of cooperation that brought us out of the darkest days of this disease.

. . . .

We believe that access to treatment for people with HIV and AIDS should not rise and fall with the inevitable cycles of our national economy.  It’s not consistent with our values.  And it’s not in the best interests of our country.

She also discussed funding priorities for prevention dollars:

[W]e’re going to focus our funding where it can make the biggest difference.

For example, we’ve been very successful at keeping HIV/AIDS incidence low for some populations.  If you’re a white, heterosexual woman like me, your chances of being infected by HIV/AIDS are very low – just 1 in 50,000.  But if you’re a gay Hispanic man, your chances are 350 times higher.  In some U.S. cities, it’s estimated that almost half of all gay black men are HIV-positive.

So part of what this strategy says is that we’re going to intensify our prevention efforts in the communities where infections are concentrated.  We’re going to put our resources where the risk is.

To help us do that, we’ve committed $30 million from an unprecedented new Prevention and Public Health Fund created by the Affordable Care Act to support new and existing HIV prevention efforts.  These funds will allow us to focus on the communities and geographic areas that have been hardest hit by this disease.  And we recently updated our budget request for next year to request $35 million for these essential prevention efforts.

The full remarks of the secretary can be found below the jump.

On the (arguably) final day to file a notice of appeal in the Perry v. Schwarzenegger Proposition 8 case, word comes via Ian Millhiser at the Think Progress Wonk Room that the pro-Prop 8 forces are making another long-shot attempt at getting one of the state defendents to appeal. Unlike the unsuccessful attempt in the California courts, however, this attempt has no real chance of long-term success.

From the news release referenced by Millhiser:

A group of conservative leaders led by former attorney general candidate John Eastman have asked to meet with Lieutenant Governor Abel Maldonado to discuss his support of an appeal in a federal court suit regarding Proposition 8.

[B]oth Jerry Brown and Arnold Schwarzenegger have refused to do so based on their personal opposition to Proposition 8.

"But Abel Maldonado is a supporter of Proposition 8 and hopefully more willing to honor the obligations of his office than the current Attorney General has been," says Eastman. "Importantly, while the Governor is traveling outside of the State, all of the rights and responsibilities of the office of Governor rest with Mr. Maldonado."

The people behind this are the same folks at the Capitol Resource Institute behind the attempt to get the California courts force the governor or attorney general to appeal the August 4 trial court decision striking down Proposition 8.

Speaking with Metro Weekly this afternoon, Karen England with the Institute could not even confirm that a meeting with the lieutenant governor had been held.

"We have people that are in contact with his campaign and the lieutenant governor's office," she said. "I think that, for him, he's weighing the political options."

She declined further comment on the efforts to have Maldonado file a notice of appeal in the case.

What's more, even if a meeting is held, it's not quite clear how -- technically -- things would and could move forward if he filed a notice of appeal. Although it is true that Maldonado is acting with all the authority of the governor at this time, the governor is on the record in the filing before the Supreme Court of California that he is not appealing the case.

Moreover, upon his return, he will retain the authority to stop appealing the case -- and to withdraw the notice of appeal -- if Maldonado should act.

At the end of the day (and even, likely, by the end of the day), this move appears to be more about campaign bluster than about actual developments in the case.

[UPDATE AT 2AM: After winning eight awards at MTV's Video Music Awards, the above capture is now the landing page for Lady Gaga's website. It links directly to Servicemembers Legal Defense Network's site.]

Although President Obama didn't talk about it at Friday's news conference, Lady Gaga tonight is addressing "Don't Ask, Don't Tell" at MTV's Video Music Awards -- having been escorted to the awards by four clients of Servicemembers Legal Defense Network. Three of the four were discharged under DADT -- David Hall, a former U.S. Air Force Staff Sgt.; Mike Almy, former U.S. Air Force Major; and Stacy Vasquez, former U.S. Army Sgt. First Class. The fourth is Katie Miller, the West Point cadet in the top of her class who resigned from the academy in August in protest of DADT.

Gaga first addressed the issue on the "White Carpet" before the awards (below), but continued to address the policy and her guests inside the awards, acknowledging -- while accepting the award for Best Female Video -- "the discharged soldiers that came with me tonight. I love you."

At the end of the evening, after winning Video of the Year, Gaga announced that her new album would be called "Born This Way" and sang, a cappella, a line from the song (see end of post).

"God makes no mistakes," she sang. "I was born this way."

The SLDN website calls on people to "Join Lady Gaga and Repeal Don't Ask, Don't Tell" and focuses attention to three "key" senators: Majority Leader Harry Reid (D-Nev.), Minority Leader Mitch McConnell (R-Ky.) and Senate Armed Services Committee Ranking Republican John McCain (R-Ariz.), who threatened prior to the August congressional recess to hold up consideration of DADT repeal.

The move at the VMAs comes on the heels of Gaga visiting with several former servicemembers before her concert in D.C. this past week.

Gaga also was talking directly to her fans on Twitter about the message:

Silks, fabrics, shoes + jewels, fashion dreams + breaking rules. Real heroes on my arm, tonight, is for us monsters, and our fight. X

Tegan and Sara got in on the DADT-repeal action, tweeting:

Seriously amazing moment in the pre show with @ladygaga . Can't believe her. An artist with a message. Finally. #dadt #vma's

From SLDN's executive director, Aubrey Sarvis, in a statement:

"Lady Gaga's recognition of these fine patriots casts a spotlight on the unjust burden that 'Don't Ask, Don't Tell' imposes upon the brave men and women who defend our country every day, and further underscores why the Senate must swiftly act to get rid of this despicable law for good. With expected votes on the Senate floor later this month, advocates of open service still have time to contact both their senators and urge them to show support for all our veterans by voting to end DADT."

Finally, a rough video of Gaga's acceptance of the Video of the Year award and introduction of "Born This Way" is below.

Unsurprisingly, the National Organization for Marriage picked up on The Washington Post's endorsement of Ward 5 City Council candidate Delano Hunter -- and the spirit behind it -- in a new, divisive, vitriol-filled mailer opposing City Council member Harry Thomas, Jr., and supporting Hunter's run to unseat Thomas.

The Post's editorial board treated the opposition to the District's marriage equality bill being shown by Ward 5 City Council candidate Delano Hunter as somehow different from the opposition to the bill that the Post editorial board had spoken out against in the past. The Post wrote:

Mr. Hunter is not a supporter of marriage equality, but he is not the homophobe his critics make him out to be, but rather someone who thinks there is a way to provide equality for gays while respecting the beliefs of religious groups. He said he would not seek to change the law.

NOM, of course, shows no such alleged nuance and put its wholehearted opposition to marriage equality on display on the Capitol grounds earlier this summer -- at an event attended by Hunter.

Since then -- and since NOM's other candidates have left their races or have no chance of winning them -- NOM has focused its sights on Thomas, who voted for the marriage bill in 2009.

The latest flier, the back of which is shown above, was posted by Peter Montgomery at People for the American Way's Right Wing Watch blog earlier today. The front says, with a picture, "There Is a Better Choice - Delano Hunter Shares Our Values."

And portions of The Post endorsement are splattered right in the middle of the front of the mailer.

Although it was exciting to consider the possibility that I might ask President Obama a question at today's news conference in the East Room of the White House, it apparently was more important to allow Fox News to ask the president about the "Ground Zero mosque" and the would-be-Koran burner than it was to allow an LGBT media outlet (or anyone else, for that matter) to ask about last night's "Don't Ask, Don't Tell" ruling.

Had I the opportunity, though, here was my two-part question to the President (and don't fail to note that White House Domestic Policy Advisor Melody Barnes promised an answer to the first question more than three months ago):

Thank you, Mr. President.

You have said repeatedly that you think "Don't Ask, Don't Tell" and the Defense of Marriage Act are discriminatory laws. Federal judges have agreed and gone further, striking down the laws -- in whole or in part -- as violations of First Amendment, equal protection or due process guarantees. Do you -- a constitutional scholar -- agree with those judges?

On a related note, though you said today that your administration isn't avoiding "controversial" issues, many supporters of marriage equality would and have pointed to your failure to embrace that equality as just such a lack of "leadership," as you put it. Where -- in the changed realities of September 2010 -- do you stand, personally, on same-sex marriage?

I have emailed the questions, altered into third-person language, to the White House press office for answers.

[UPDATE: Although not yet a reply to my questions, White House spokesman Shin Inouye did issue the following statement about the court's ruling:

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

I am still awaiting a response to my questions.]

[Photo by Chris Geidner.]

U.S. District Court Judge Virginia A. Phillips ruled this evening that the military's "Don't Ask, Don't Tell" policy is unconstitutional, violating the free speech and due process rights of the members of Log Cabin Republicans, which brought the lawsuit. Referencing an earlier U.S. Supreme Court case that addressed how courts defer to congressional actions regarding the military, Phillips reiterated in striking down DADT that "deference does not mean abdication."

Phillips found that a permanent injunction of the government's ban on out gay and lesbian military service is the remedy she will order for the lawsuit that saw a trial this summer and features Alex Nicholson, who serves as executive director of Servicemembers United, as one of the plaintiffs.

More striking, the case -- Log Cabin Republicans v. United States -- was a facial challenge, meaning that the burden on the plaintiffs was to show that there were no circumstances under which the law would be constitutional. This is a more difficult standard than needed to prove an "as applied" challenge, in which a plaintiff only needs to show that the law is unconstitutional as applied to him or her. Although a higher burden, a successful facial challenge such as the one brought by LCR also brings a more broad outcome -- an injunction prohibiting the government from enforcing the law against anyone.

In the LCR case, Phillips has given the plaintiffs until Thursday, September 16, to submit a proposed judgment granting that remedy, at which time the government has seven days to respond with any objections. Thus, the latest date for objections -- if LCR's lawyers take their full time -- would be September 23. At any point after that, Phillips could enter her judgment.

At or before then, however, the Justice Department would need to seek and be granted a stay pending any appeal unless it is willing to stop enforcing DADT during any appeal.

As for the court's opinion, at its most basic point, the court found:

Log Cabin Republicans has demonstrated the Don't Ask, Don't Tell Act, on its face, violates the constitutional rights of its members.  Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.

Log Cabin Republicans v. United States, Memorandum Opinion, at 1.

Among the most significant factual findings relating to the Due Process argument was a crushing blow to the "readiness" and "unit cohesion" arguments:

[C]areful review and consideration of the Act itself and its legislative history reveals that this evidence fails to satisfy Defendants' burden of proving that the Act, with its attendant infringements on the fundamental rights of Plaintiff's members, significantly furthers the Government's interest in military readiness or unit cohesion.

Id. at 49.

Specifically, the court found persuasive the evidence presented by LCR regarding the military delaying discharges of deployed servicemembers suspected of violating DADT. Judge Phillips wrote:

This evidence, in particular, directly undermines any contention that the Act furthers the Government's purpose of military readiness, as it shows Defendants continue to deploy gay and lesbian members of the military into combat, waiting until they have returned before resolving the charges arising out of the suspected homosexual conduct.  If the warrior's suspected violation of the Act created a threat to military readiness, to unit cohesion, or to any of the other important Government objectives, it follows that Defendants would not deploy him or her to combat before resolving the investigation.  It defies logic that the purposes of the Act could be served by suspending the investigation during overseas deployments, only to discharge a servicemember upon his or her return to a non-combat station.

Id. at 64 (emphasis added).

Later, the court noted President Obama's statement that DADT "doesn't contribute to our national security" in finding:

Defendants have admitted that, far from being necessary to further significantly the Government's interest in military readiness, the Don't Ask, Don't Tell Act actually undermines that interest.

Id. at 65.

The court found then, in a striking passage:

If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch.  The abrupt and marked decline – 50% from 2001 to 2002 and steadily thereafter – in Defendants' enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants' practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government's interest in military readiness.

Id. at 72.

As to the due process claim, the court concluded:

In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion.  Defendants failed to meet that burden.  Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

Id. at 74.

As to the First Amendment challenge, the court found that DADT's requirement that a servicemember who "has stated that he or she is a homosexual or bisexual, or words to that effect" be discharged is a content-based speech regulation, which is disfavored under the First Amendment. Phillips wrote:

The Act does not prohibit servicemembers from discussing their sexuality in general, nor does it prohibit all servicemembers from disclosing their sexual orientation. Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not.  Thus, on its face, the Act discriminates based on the content of the speech being regulated.

Id. at 79.

The court found that, even when accounting for the greater deference given to speech restrictions in a military setting, "[t]he Don't Ask, Don't Tell Act fails this test of constitutional validity." Id. at 81.

The court concluded:

[T]he Act's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.

Id. at 83.

The court's opinion can be found here: DADT opinion Sept 9 2010.pdf

On September 1, the California Third District Court of Appeals refused an attempt by lawyers with the Pacific Justice Institute on behalf of Pastor Joshua Beckley to require California Gov. Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) to appeal the ruling of the federal disctrict court in Perry v. Schwarzenegger, the challenge to Proposition 8.

Today, Schwarzenegger and Brown filed papers in the California Supreme Court responding to an appeal of that ruling that was filed on September 7, with Deputy Attorney General Tamar Pachter writing for Brown that Beckley's attempt "is too little, too late."

Pachter concluded:

It is within the Attorney General's discretion to determine that it is or that it is not appropriate to pursue an appeal. In Perry, given the Attorney General's position at trial, there are no grounds for an appeal, and the filing of an appeal under such circumstance would be frivolous. The petitioner's contention to the contrary is manifestly without merit.

[8:56 P.M. UPDATE: The California Supreme Court denied the appeal, with a docket entry: "Petition for review denied." The court issued no opinion explaining its decision.]

Today's filing was set by a court order detailing a briefing schedule of the expedited appeal, which lawyers for Beckley argue is limited due to the timeline set by the Ninth Circuit for the appeal of the Perry decision. From the Supreme Court's docket:

"Respondents [Schwarzenegger and Brown] are directed to serve and file, by letter brief, any answer to the petition for review in the above-captioned matter on or before 9:00 a.m. on Wednesday, September 8, 2010. Any reply to the answer is to be served and filed, by letter brief, on or before 12:00 noon on Wednesday, September 8, 2010. No request for extension of time will be granted."

However, as reported by Karen Ocamb at LGBT POV, the Capitol Resources Institute misleadingly characterized the simple docket scheduling order in an email to supporters. They wrote:

The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal.  Then the Pacific Justice Institute has just three hours to respond by noon today.

“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute.  “Millions of Californians voted for Proposition 8.  The issue should be heard all the way up to the US Supreme Court.   No elected official ought to be able to substitute his judgment for the decision of our courts.”

Brown's response can be found here: Letter Brief.pdf

[UPDATE: Lisa Keen reports that Schwarzenegger's filing before the court included a "definitive statement" that "he has decided not to appeal the Proposition 8 court decision to the 9th Circuit."]

[FURTHER UPDATE: The Governor presents a strong front opposing Beckley in his filing as well, with his lawyer writing:

Like any litigant, State constitutional officers have the discretion to make such strategic litigation decisions. Nothing in the California Constitution, or any other authority cited by Beckley, imposes a mandatory duty on State constitutional officers to appeal decisions of any court, let alone a federal court.

Schwarzenegger's response can be found here: Gov Letter Brief.pdf]

Earlier this morning, New York Gov. David Paterson (D) signed the Dignity for All Students Act into law, an inclusive anti-harassment bill hailed by safe schools advocates. The bill prohibits bullying and harassment in public schools based on "actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex," and defines "gender" to include "a person's gender identity or expression."

Coming during National Suicide Prevention Week, the signing was hailed by the Trevor Project's executive director Charles Robbins, who said in a news release that "[t]he law would make New York one of more than 40 states with anti-bullying laws, 14 of which plus the District of Columbia provide inclusive protections based on sexual orientation and gender identity or expression."

He went on:

"When youth are threatened at school, or their property gets stolen at school, and they fight at school, the odds that they will attempt suicide more than double. Considering more than half of sexual minority youth in schools have been verbally harassed and one in ten is physically assaulted, the Dignity for All Students Act with the inclusion of gender identity and expression will be a giant step to reducing instances of self-harm and suicide that result from harassment by school peers."

As part of the week, the Trevor Project on Tuesday noted its participation in "Take 5 To Save Lives," a new collaborative education effort produced by the National Council for Suicide Prevention.

The National Gay and Lesbian Task Force's executive director, Rea Carey, said of the signing in a statement:

"We applaud the Dignity for All Students Act Coalition and other advocates who worked so tirelessly on this issue; state lawmakers for passing this legislation; and Gov. David Paterson for signing it into law. Safe schools for our young people should be the rule, not the exception."

David Corn's Stephanie Mencimer's "Scrubbing Santorum" from the new issue of Mother Jones started making the rounds today and led to news of an offer that is unlikely to be accepted -- but interesting to consider.

The story is, of course, about the now all-too-well established -- and successful -- effort by writer Dan Savage to make the now-former senator pay for his meandering comments to an Associated Press reporter in 2003 in which he compared homosexual activity to "man-on-dog" sex.

This led to the creative definition of santorum that was the result of a contest held by Savage and the associated "Spreading Santorum" website. Although most activists have long been aware of the Google power of this effort, Corn spreads the word (so to speak) with the article, adding word of an offer from Savage:

Savage has not forgiven Santorum for his seven-year-old comments: "Rick would have prevented me and my partner from being able to adopt my son," he points out. But Savage does have a deal for the politician. "If Rick Santorum wants to make a $5 million donation to [the gay marriage group] Freedom to Marry, I will take it down. Interest starts accruing now." Santorum may want to consider Savage's offer. Otherwise, he's kinda screwed.

Informed about the offer, Freedom to Marry's executive director, Evan Wolfson, told Metro Weekly:

Support for Freedom to Marry's national campaign would be welcome -- and a good way for Rick Santorum to start cleaning up the discriminatory mess he and his companions have made.

Based on recent comments, Santorum has no interest in cleaning up the mess -- or the Google hits for his name.

If you don't follow Jim Burroway and the work of the folks at Box Turtle Bulletin on Uganda's anti-gay activity -- most notably the proposed Anti-Homosexuality Bill -- you're missing out on one of the important stories about international inequality faced by LGBT people.

If you don't follow Jeff Sharlet's work on the Family (or the Fellowship, or the folks behind the C Street house), you're missing out on great journalism about the extraordinary influence of one religious organization in American public life.

Apparently, The New Yorker's Peter Boyer follows neither, as judging by his almost glowing portrait of the organization.

Burroway writes today:

We noted previously that Jeff Sharlet’s upcoming book C Street: The Fundamentalist Threat to American Democracy, will explore, among many things, the specific connections between the secretive American evangelical movement known as the Fellowship or “The Family” and the draconian Anti-Homosexuality Bill that was introduced into Uganda’s Parliament last year. A key chapter of that book has already been published in the September issue of Harper’s, and another modified excerpt was posted online at The Advocate. Now it appears that the Family has decided to react, and they are in full PR mode with the help of Peter Boy[er] at The New Yorker.

Judging by the broad, unsubstantiated brush strokes that Boyer takes, Burroway's use of the word "help" does not appear to be that far off. At one point, he writes:

One view of the Fellowship, with some popularity on the secular left, is of a sort of theocratic Blackwater, advancing a conservative agenda in the councils of power throughout the world. Secretary of State Hillary Clinton, a friend of the Fellowship, might dispute that view—if she spoke about the group, which she does not.

So, the "no comment" becomes a possible (though not certain) denial. Interesting decision. Read Boyer's full "Fact" piece for more.

Sarah Palin responded -- without mentioning the article by name -- to the overwhelmingly negative Vanity Fair article by Michael Joseph Gross detailing the former vice presidential candidate's background and current life. On Sept. 2, she said:

“I don't read some of it because I know that those who are impotent and limp and gutless, and then they go on, they're anonymous, they're sources that are anonymous, and impotent, limp, and gutless reporters take anonymous sources and cite them as being factual references. ... [I]t just slays me because it's so absolutely clear what the state of yellow journalism is today that they would take these anonymous sources as fact. So when a story especially is filled with those and we know it's bogus, and we're not going to read it.”

Advocate.com editors -- the piece has no named byline -- took umbrage at Palin's comments, writing:

Is Sarah Palin using code words to slam gay journalist Michael Joseph Gross, a frequent Advocate contributor who wrote the much-buzzed-about profile of the former vice presidential nominee in this month’s Vanity Fair?

Palin didn’t mention Gross by name while talking Thursday on Sean Hannity’s WABC radio show, but she seemed to be referring to the article — and pointedly used emasculating words that have long been used as euphemisms for homosexuality — when she called reporters who publish “rumors” about her “impotent,” “limp,” and “gutless.”

The Advocate.com piece, however, prompted its own response, with GOProud board chairman Chris Barron issuing a statement today:

“It is The Advocate, not Sarah Palin, who is guilty of ‘gay-baiting.’  I don’t think most people associate the words ‘impotent,’ ‘limp,’ or ‘gutless’ with being gay – I know I certainly don’t.  If the folks at The Advocate think these words are euphemisms for being gay or lesbian then I think that speaks volumes about their own internalized homophobia.

“Governor Palin was absolutely right to use the words she chose to describe the pathetic hatchet job penned by Mr. Gross.”

Regardless of who's right, score one for GOProud for finding a way to get people talking on a Friday before a long weekend about words and what they mean.

From The Washington Post editorial board:

In Ward 5, first-term council member Harry Thomas Jr. is facing challenges from Kenyan McDuffie, Delano Hunter and Tracey D. Turner. With the notable exception of the courage he showed in voting for marriage equality, Mr. Thomas has been a major disappointment. He pretty much defined his role as trying to stop anything -- no matter how sensible -- sought by the mayor. He led the effort to prevent school facilities chief Allen Y. Lew from overseeing park projects and has been the union's main champion in trying to thwart needed reforms in the schools and government workforce. Particularly distasteful was how he allowed racial demagoguery to derail the nomination of Ximena Hartsock as parks director.

Both Mr. Hunter, a community organizer with Brookland Manor, and Mr. McDuffie, a lawyer who worked in the Justice Department civil rights division, are better alternatives. We give the edge to Mr. Hunter, an engaging newcomer who is running a grass-roots campaign. He has an intimate knowledge of the needs of the ward and has smart ideas on how to tackle issues such as truancy and joblessness. Mr. Hunter is not a supporter of marriage equality, but he is not the homophobe his critics make him out to be, but rather someone who thinks there is a way to provide equality for gays while respecting the beliefs of religious groups. He said he would not seek to change the law.

Hunter attended the National Organization for Marriage's "Summer for Marriage" D.C. final tour stop at the U.S. Capitol grounds on August 15. As noted by Bob Summersgill at the GLAA Forum, NOM then sent a mailer out in support of Hunter. He earlier received NOM support from fliers produced by NOM in opposition to D.C. marriage equality supporters, including Thomas.

[UPDATE: Adam Bink at Open Left follows up, noting how the Post's contortions are "muddying the waters" on its previous steadfast support for marriage equality.]

[FURTHER UPDATE: Gertrude Stein Democratic Club President Jeffrey Richardson writes:

The Washington Post's endorsements or lack of endorsements in the September 14th DC Democratic Primary make on thing very clear, if you challenged Mayor Fenty or questioned schools Chancellor Michelle Rhee, "No Endorsement for You".

Nothing made this clearer than the Washington Post editorial board's decision to endorse Delano Hunter for the Ward 5 City Council seat dismissing his stance against marriage equality in the District of Columbia and his call for a referendum or initiative on the legislation and ignoring him having tied himself to the homophobic, hate filled, and offensive statements and actions of the National Organization for Marriage.

Check out his full post.]

An interesting side-note to come from the Texas appellate ruling on August 31 denying a Texas gay couple the ability to get a divorce -- see "Lone Star Slight" for more -- was the way the court handled Baker v. Nelson, the 1972 U.S. Supreme Court decision that is often raised in marriage cases and was a topic of discussion at Justice Elena Kagan's confirmation hearings.

The court introduced the case as such:

The State contends that appellee’s equal-protection challenge is completely foreclosed by the United States Supreme Court’s 1972 decision in Baker v. Nelson.  That case began as a suit in Minnesota state court in which two men sued for the right to obtain a marriage license.  Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971), dism’d, 409 U.S. 810 (1972).  The [same-sex couple] argued that they were entitled to a marriage license under Minnesota law and, alternatively, that a law permitting only opposite-sex marriages denied them due process and equal protection.  Id. at 185–86.  The trial court denied relief, and the Minnesota Supreme Court affirmed.  That court held that Minnesota law prohibited same-sex marriages and that this prohibition did not violate petitioners’ due-process and equal-protection rights.  Id. at 185–87.  On further appeal to the United States Supreme Court, the Court dismissed the appeal “for want of a substantial federal question.”  409 U.S. at 810.  The State argues that this dismissal constituted a rejection of the petitioners’ equal-protection claim on the merits.  Because there is no Supreme Court precedent overruling Baker, the State concludes, we must reject appellee’s equal-protection claim.  Appellee [same-sex couple] makes several arguments in response.  He distinguishes Baker because it involved an application for a marriage license, while his claim involves a request for a divorce.  And he contends that Baker has been “fatally undermined” by subsequent cases.

Then, the court noted:

A summary disposition by the Supreme Court has very narrow precedential effect. Specifically, that precedential effect “can extend no farther than the precise issues presented and necessarily decided by” the Court’s action. Thus, a summary disposition has “considerably less precedential value than an opinion on the merits.” [Citations omitted.]

Finally, the court concluded:

The issue presented in this case is distinguishable from the precise issues presented to and decided by the Supreme Court in Baker. ...

[T]he Baker appellants argued that the Constitution compelled Minnesota to grant them a marriage license and treat them as a married couple from then on.  In the instant case, by contrast, appellee does not complain of Texas’s refusal to recognize his marriage to H.B. on a going-forward basis.  His complaint is that Texas law relegates him to a declaration of voidness, when a party to an opposite-sex marriage in otherwise similar circumstances would be entitled to a divorce.

Baker is certainly relevant because it reaffirms the states’ preeminent role in the area of family law, and we accord Baker appropriate weight in our analysis of the equal-protection issue. But because Baker is distinguishable, we conclude that it does not control the disposition of the equal-protection issue presented in this case.

The handling of Baker by this particular court is worthy of note in light of the court's otherwise dismissive handling of most of the same-sex couple's other claims.