Thumbs up for #Hotties4Sanity!
[Photos by Chris Geidner.]
What? Metro Weekly readers like #Hotties4Sanity?
At least the latter.
More #Hotties4Sanity at the #Rally4Sanity below the jump.
Thumbs up for #Hotties4Sanity!
[Photos by Chris Geidner.]
What? Metro Weekly readers like #Hotties4Sanity?
At least the latter.
More #Hotties4Sanity at the #Rally4Sanity below the jump.
Your intrepid, homosexual reporter braved the 16th Street bus today to head down to Jon Stewart's Rally for Sanity. In addition to being a great place to see funny signs, it was a fantastic location to see attractive men. As such, this post will be subheadlined "#Hotties4Sanity" -- which would have been the Twitter series I'd have started if the Internets and phone signals weren't broken.
God bless America.
I feel more serene looking at this picture.
The dragon supported D.C. statehood. Good for him.
He asked if he'd make the blog. #guiltyourwayontotheblog
I wonder how closely he adheres to the schedule.
Check out more pictures below the jump.
White House spokesman Robert Gibbs elaborated today during the press briefing on President Barack Obama's comments on Wednesday to AmericaBlog's Joe Sudbay about marriage equality.
During Wednesday's political blogger Q-and-A with Obama, the president told Sudbay:
I think that -- I am a strong supporter of civil unions. As you say, I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.
But I also think you’re right that attitudes evolve, including mine. And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents.
Gibbs added today:
I think he went through what his position is ... but, at the same time, he talks to colleagues and co-workers and hears them talking about being treated different, and the president internalizes that.
A follow-up questioner (The Wall Street Journal's Laura Meckler) asked whether people should expect this evolution to mean voters should expect Obama to come out in support of same-sex marriage:
I don't know the answer to that, Laura. I think he listens to those around him and those he meets who talk about feeling like they're treated not the same. They're good parents, and good people. That's something he thinks about.
She then followed up by asking what, then, Obama thought was the strongest argument against same-sex marriage, which Gibbs brushed off by referring to his Wednesday answer to the bloggers.
A transcript of the conversation between Obama and the bloggers was not made available by the White House to Metro Weekly, but a copy of the transcript was posted at Daily Kos by Barbara Morrill, one of the participants in Wednesday's Q-and-A.
Here's the full exchange between Sudbay and Obama on marriage:
Q So I have another gay question. (Laughter.)
THE PRESIDENT: It’s okay, man. (Laughter.)
Q And this one is on the issue of marriage. Since you’ve become President, a lot has changed. More states have passed marriage equality laws. This summer a federal judge declared DOMA unconstitutional in two different cases. A judge in San Francisco declared Prop 8 was unconstitutional. And I know during the campaign you often said you thought marriage was the union between a man and a woman, and there -- like I said, when you look at public opinion polling, it’s heading in the right direction. We’ve actually got Republicans like Ted Olson and even Ken Mehlman on our side now. So I just really want to know what is your position on same-sex marriage?
THE PRESIDENT: Joe, I do not intend to make big news sitting here with the five of you, as wonderful as you guys are. (Laughter.) But I’ll say this --
Q I just want to say, I would be remiss if I didn’t ask you this question.
THE PRESIDENT: Of course.
Q People in our community are really desperate to know.
THE PRESIDENT: I think it’s a fair question to ask. I think that -- I am a strong supporter of civil unions. As you say, I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage.
But I also think you’re right that attitudes evolve, including mine. And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents.
And I care about them deeply. And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today. (Laughter.)
Q It is an important issue, and I think that --
THE PRESIDENT: I think it’s an entirely fair question to ask.
Q And part of it is that you can’t be equal in this country if the very core of who you are as a person and the love -- the person you love is not -- if that relationship isn’t the same as everybody else’s, then we’re not equal. And I think that a lot of -- particularly in the wake of the California election on Prop 8, a lot of gay people realized we’re not equal. And I think that that’s -- that’s been part of the change in the --
THE PRESIDENT: Prop 8, which I opposed.
Q Right. I remember you did. You sent the letter and that was great. I think that the level of intensity in the LGBT community changed after we lost rights in that election. And I think that’s a lot of where the community is right now.
THE PRESIDENT: The one thing I will say today is I think it’s pretty clear where the trendlines are going.
Q The arc of history.
THE PRESIDENT: The arc of history.
Sudbay also asked about whether Obama thinks "Don't Ask, Don't Tell" is unconstitutional and what his plan is for lame-duck Senate passage of repeal legislation.
Read the exchanges below the jump.
The Democratic National Committee has released a letter authored by Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.) aimed at getting LGBT voters to the polls on Nov. 2. In part, the trio writes:
Our community is frustrated with the pace of change. And as three LGBT Members of Congress, we share your frustration. Despite this, an apathetic stance during such a critical time is fruitless.
We need not look too far into the past to see how inaction and complacency truly pays us back. Under Republican rule, we not only suffered from a lack of victories, but truly devastating setbacks. We all remember President Bush and the Republican Congress pushing for a Federal Marriage Amendment for political purposes and using our community as a wedge to advocate for state-wide marriage amendments across the nation. Republicans make no secret of their opposition to seemingly nonpartisan issues such as adoption by gay & lesbian couples despite the thousands of children in need of homes. And we all remember federal agencies being told to ignore any grant request that said gay or LGBT, including grants for HIV/AIDS funding.
There has, indeed, been progress under the Obama Administration. In the 111th Congress, we passed the Matthew Shepherd and James Byrd Jr. Federal Hate Crimes Act, admittedly no small feat, while the State Department adopted inclusive passport procedures recognizing and accommodating our transgender brothers and sisters. Our voice was further strengthened when we achieved medical decision parity in America’s hospitals and strengthened polices that prevented discrimination against housing applicants based on sexual orientation and gender identity.
Is it enough? No. The fight for equality is far from over. We face obstruction at every turn and it is incumbent upon us to push harder to ensure swift action on the issues that affect us most.
Read the full letter below the jump.
There has -- thus far -- only been one peep from the White House "Don't Ask, Don't Tell" meeting that was to begin at 4:30 p.m. today. There will, doubtless, be much more about the "off the record" meeting in coming hours and days.
The Atlantic's Marc Ambinder gets first dibs, though, tweeting:
President Obama dropped by today's White House meeting on DADT.....
A White House aide confirmed this, saying the president stopped by the meeting "to directly convey to the participants his personal commitment on this issue."
A person outside the White House familiar with the meeting agenda told Metro Weekly that there were three main points the White House was looking to impress upon attendees: (1) President Obama was pushing for lame-duck Senate action, (2) there would would more meetings up to the vote and (3) executive options are not being looked at right now.
The person was not attending the meeting, so it was not yet clear if the meeting went as planned or if further discussion changed the focus of the meeting.
Did the Obama drop-by go like this?
Probably not. Although, I saw the invite list. It could have happened.
Check back here for more to be added to this post throughout the evening.
In a letter sent today from Reps. Jerrold Nadler (D-N.Y.), Barney Frank (D-Mass.), Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.), the four members of Congress ask the administrator of the Substance Abuse and Mental Health Services Administration (SAMHSA) -- within the Department of Health and Human Services -- to discuss "questions and concerns about SAMHSA’s current policies to fight LGBT youth suicide and its recently released draft plan, Leading Change: A Plan for SAMHSA's Roles and Actions 2011-2014."
The four write:
While we applaud SAMHSA for its past and ongoing work in supporting general suicide prevention, we are concerned that SAMHSA’s existing policies may not fully meet the needs of LGBT youth. For example, in contrast to other groups, SAMHSA does not appear to provide special emphasis on young LGBT Americans for specific suicide prevention efforts. SAMHSA should take immediate and specific steps right now to help reduce the risk of additional suicides by young LGBT Americans. This is a serious public health problem which cannot wait.
Moving forward, we recognize and appreciate that SAMHSA does seem to plan a greater focus on LGBT youth in its suicide prevention efforts, as explained in Leading Change. Specially, Objective 1.3.1 details SAMHSA’s intent to “[i]mprove mental, emotional, and behavioral health and well-being among military families, youth, and American Indians and Alaska Natives with a focus on ethnic minority and LGBT youth.” However, this Objective is subsidiary to Goal 1.3, which, unfortunately, fails to recognize LGBT youth specifically as a population at high risk for suicide. Goal 1.3 is written as follows: “Prevent suicides and attempted suicides among populations at high risk, especially military families, youth, and Americans Indians and Alaska Natives.”
Additionally, they ask for answers to several specific questions:
Read the letter: Letter to SAMHSA re LGBT Youth Suicide.pdf
At the last White House meeting with outside groups regarding the "Don't Ask, Don't Tell" policy, the end result was the compromise language made public that evening that became the amendment offered by Rep. Patrick Murphy (D-Pa.) to the National Defense Authorization Act in the House.
Today's meeting, reported earlier today by Kerry Eleveld, is not likely to result in such an immediate outcome, as it is to be focused on ways "to help us figure out how to move forward with the lame duck session," according to an email sent to participants by Brian Bond, the deputy director of the Office of Public Engagement at the White House.
As Congress is in recess until after the elections, any specific plans are unlikely to include immediate action.
A White House aide told Metro Weekly in an email, [T]he White House is meeting with several interested parties to discuss the legislative repeal of Don’t Ask, Don’t Tell. The meeting will concern the work that remains to be done to ensure Congressional action on this issue this year."
The meeting is to take place at 4:30 p.m. today, is to have bi-partisan participation and is, per Bond's email, "off the record."
R. Clarke Cooper, the executive director of Log Cabin Republicans, is reportedly one of the expected attendees for the meeting, as is Servicemembers United executive director Alex Nicholson. Nicholson is the individually named representative of the plaintiffs in the Log Cabin Republicans v. United States lawsuit. Assuming their attendance, the government would have an obligation not to discuss the case with the two men directly without their lawyers present.
Bond's email makes it clear to all the participants -- which reportedly include others whose organizations have taken a formal position in the LCR case through Monday's amicus curiae filings -- that "no discussion of current court cases or legal strategy" will take place at the meeting "or Counsel’s Office will end the meeting."
[UPDATE @ 2:15 P.M.: The Huffington Post's Sam Stein gets this follow-up:
Asked for comment, however, an administration official stressed that there are very precise legal lines that can't be crossed. One of them is talking about ongoing litigation with litigants in the room.
"Some of the participants in the meeting are involved in active litigation against the government on the issue of Don't Ask, Don't Tell, so it wouldn't be appropriate to discuss that litigation," said the administration official "This is standard procedure for any meeting where that would be the case."
"You could add further that our lawyers can't have contact with represented parties without their counsel being present."
The meeting, still, is yet to be held.]
In a letter to educators to be released today, Oct. 26, Assistant Secretary of Education for Civil Rights Russlynn Ali will provide guidance to the educators on, among other topics, their obligations under Title IX to protect LGBT students from sexual harassment and gender-based harassment resulting from sex stereotypes.
In a conference call with reporters on Monday, a spokesman for the Education Department said, "This is the first time that the Office for Civil Rights in the Department of Education has articulated and clarified responsibilities educators have to protect GLBT folks against the type of harassment covered under gender stereotyping and gender harassment."
In the letter, Ali writes:
Title IX prohibits harassment of both male and female students regardless of the sex of the harasser—i.e., even if the harasser and target are members of the same sex. It also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.
During the Monday conference call, Ali said the letter aims at informing educators about their obligations to "prevent, alleviate and remediate discrimination happening in our nation's schools." Ali focused in on LGBT students in the call, which consisted of questions from exclusively LGBT media outlets.
"A lot of bullying experienced by LGBT students is accompanied by or in the form of sexual harassment or gender-based harassment because students are perceived as not conforming to traditional gender roles," she said. "We want to be sure that that kind of harassment and discrimination can very much be a violation of Title IX and federal civil rights laws."
Assistant Deputy Secretary of Education for Safe and Drug-Free Schools Kevin Jennings called the move "a very important step" and "a very clear commitment by this Department to combating bullying and harassment in all its forms, including harassment of students based on sexual orientation and gender identity."
Sexual orientation and gender identity are not, as a status, protected from discrimination under federal education law, although a bill in Congress -- the Student Non-Discrimination Act, which was introduced by Rep. Jared Polis (D-Colo.) and is modeled after Title IX -- would add both categories to federal law.
An Education Department spokesman noted, "Many times the type of harassment directed at GLBT individuals takes the form of gender-based stereotyping, and that is protected. It's not harassment because they are GLBT that they is protected; it is the type of harassment that they are on the receiving end of that is protected."
The SNDA and Safe Schools Improvement Act both have more than 100 co-sponsors in the House, but neither has received specific endorsement from the Obama administration, which has announced support for the goals of the bills generally.
In response to a question from Metro Weekly on Monday about whether the Education Department supports the bills, Ali said, "We certainly supportthe goals of both Polis's bill and the bill on safe and healthy schools," adding that the Department of Education would "use all of the policy tools within our disposal to try and prevent this type of harassment from occurring" during the process of reauthorizing the Elementary & Secondary Education Act next year.
"Today, though, is about using the tools at our disposal now."
* * *
Read the whole letter - DOE102610.pdf - or read the Title IX portion below the jump.
Today, attorneys for Log Cabin Republicans filed the organization's opposition to the government's request for a stay of U.S. District Court Judge Virginia Phillips's injunction of the "Don't Ask, Don't Tell" policy during the course of the government's appeal of the trial-court ruling. The injunction had stopped all enforcement of DADT across the world, but the stay effectively puts the injunction on hold until the Ninth Circuit decides otherwise.
In the filing, Dan Woods argues that the government advanced arguments before the appellate court that it had not made to Judge Phillips, that a stay should not automatically be granted, that the government does not meet the standards for a stay and that a stay would be "more disruptive of the status quo than an injunction." Notably, LCR has requested that the Ninth Circuit hold oral arguments before deciding the stay request.
In one of the strongest paragraphs in LCR's filing, the attorneys summarize the circumstances of the case in the introduction:
The government made no showing to the district court, and makes no showing here, either that it is likely to succeed on the merits on appeal, or that it would sustain irreparable injury if the district court’s judgment remains in place pending determination of this appeal. By contrast, the district court conducted a careful, extensive analysis of the law, at every stage of the proceedings below. It concluded, after a full trial at which it heard testimony from over 20 witnesses and received over 100 exhibits in evidence, that DADT causes irreparable harm to servicemembers by its very existence and implementation, subjecting them to investigation and discharge, and chilling their First Amendment rights of free speech and petition, while actually impairing unit cohesion, morale, and discipline – the very factors that supposedly justify DADT. The district court’s decision was not a political one, nor an instance of “judicial activism”: it was compelled by the evidence before it, presented at a full trial conducted under our adversarial litigation system.
For more than 8 days following Phillips's Oct. 12 order, the government was not enforcing DADT. Then, on Oct. 20 and at the government's request, the U.S. Court of Appeals for the Ninth Circuit issued a temporary stay so that it could consider whether to grant a stay that would last the course of the entire appeal. On Oct. 21, the Defense Department announced new procedures that would limit who could authorize a DADT-related discharge.
LCR's attorneys had been given a deadline of today to file its opposition to the government's request.
Additionally, Servicemembers Legal Defense Network, Lambda Legal Defense and Education Fund, The Palm Center and Servicemembers United filed their own opposition briefs before the court in the form of amicus curiae, or friend of the court, briefs. Amicus briefs commonly are filed by people and groups interested in the outcome of a case even though they are not a party to the case.
Although, as noted, LCR has requested oral arguments to be held prior to a ruling, the Ninth Circuit is free to rule on the stay issue at any time.
This afternoon, the U.S. Court of Appeals for the Ninth Circuit announced that the oral arguments in the Perry v. Schwarzenegger case will be held at 10 a.m. PT on Dec. 6 at the James R. Browning U.S. Courthouse in San Francisco.
Earlier this week, the plaintiffs in the case filed their opposition to the appeal by the proponents of Proposition 8.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has issued a temporary stay of U.S. District Judge Virginia Phillips's Oct. 12 order in Log Cabin Republicans v. United States halting all enforcement of the military's "Don't Ask, Don't Tell" policy.
After DADT had been halted from enforcement for nearly 200 hours, the Ninth Circuit order legally makes DADT enforceable again for the time being.
In a brief order, Judges O'Scannlain, Trott and W. Fletcher wrote:
This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.
Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.
The judges' order means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide -- sometime after Oct. 25 -- whether to issue a stay pending the appeal of the case to the Ninth Circuit.
This does not immediately change the military's policy of not enforcing DADT, as the Oct. 15 guidance from Undersecretary of Defense for Personnel and Readiness Clifford Stanley stated that, while seeking a stay, "the Department of Defense will abide by the terms of the injunction" and stated that "additional guidance" would come if a stay is granted. [The "additional guidance" -- likely reinstituting DADT enforcement -- could come at any time and without warning.]
This also is not a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide -- sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request -- whether to issue a stay pending the outcome of the appeal. The decision will likely come soon after the Oct. 25 submission by LCR because the court will not hear oral arguments in the case and stated in its order that the government will not be allowed to file a reply brief, which would happen in the ordinary course of appellate briefing.
If a stay is granted pending the appeal, however, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.
Attorneys for the Log Cabin Republicans filed their opposition this afternoon to the Department of Justice's request that the U.S. Court of Appeals for the Ninth Circuit issue a stay today while the court considers the DOJ request for a stay pending the appeal of Log Cabin Republicans v. United States.
The attorneys from White & Case pull no punches, writing:
Each argument that the government asserts as a basis for a stay has already been raised to the district court, which rejected them all – not cursorily, or in passing at an oral argument, but in extensive reasoned opinions at multiple stages of the proceedings below. The district court’s thoughtful analysis of each argument the government makes here should not be rejected in a summary proceeding, on less than one day’s consideration.
The attorneys go on to dismiss the claim by the government that the injunction places too high of a burden on the government:
The only thing the injunction requires is that appellants cease enforcing and applying the Don't Ask, Don't Tell policy (“DADT”), and discontinue any pending investigations commenced under that policy. The appellants have apparently already done so, since the injunction was issued on October 12; there is no reason to alter the current status quo and excuse the appellants from complying with the injunction for the next few days while their motion for stay pending appeal is properly briefed and decided in this Court.
Christian Berle, the deputy executive director of LCR, wrote to Metro Weekly, "In the eight days since ‘Don’t Ask, Don’t Tell’ has been suspended, there have been adverse consequences to open service. The Department of Justice is underestimating the professional capacity of our armed forces, we have the best military in the world that has been capable of racial integration, of creating opportunities for women all while engaging in foreign operations."
The Ninth Circuit could issue a decision at any time.
If the Ninth Circuit does not act by 7 p.m. Pacific Time, DADT will have been unenforced for the previous 200 hours.
More to come ...
The Department of Justice has asked the U.S. Court of Appeals for the Ninth Circuit for an emergency stay of U.S. District Court Judge Virginia Phillips order halting enforcement of the "Don't Ask, Don't Tell" policy. The injunction, which was issued on Oct. 12, was the result of her September decision in Log Cabin Republicans v. United States that DADT is unconstitutional.
In its filing -- in which DOJ lawyers say that Phillips's order is "at odds with basic principles of judicial restraint" -- they make the following request:
We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.
The request likely will be heard by the "motions panel" for October, which is Judges O'Scannlain, Trott, and W. Fletcher.
The government attorneys go on to argue that Log Cabin Republicans does not have standing to maintain the case, a point that was argued by the government unsuccessfully at trial.
DOJ then argues, "The government has also shown a likelihood of success in its argument that the district court erred in ruling § 654 [the DADT law] unconstitutional on its face."
Finally, DOJ argues that the remedy -- the worldwide injunction against all enforcement of DADT -- is improper because no class had been certified in the case. In other words, because this was not a class-action lawsuit, representing all those impacted by the alleged wrong, an all-encompassing injunction like that ordered by Phillips is improper.
[UPDATE: The lawyers for LCR responded to the news of the government's request for a stay -- including the request for a temporary stay to be issued today while it considers the request for a stay pending the appeal of the case -- by stating that they planned to file written opposition to the emergency motion for temporary administrative stay later today and written opposition to the motion for a stay of the injunction late this week or early next week. No oral arguments are expected at the Ninth Circuit for consideration of either request.
LCR's deputy executive director, Christian Berle, wrote in response to an inquiry from Metro Weekly, "It has been eight days since the Department of Defense has suspended enforcement of the 'Don't Ask, Don't Tell' policy, and there has been no evidence of any adverse consequences.
"Log Cabin Republicans believes that the Department of Justice is seriously underestimating the professional capacity of our brave servicemembers in continuing under a military that allows open service by gays and lesbians," he wrote. "We are prepared to defend this injunction and this ruling in whatever court or forum in which we are challenged."]
After 5 p.m. Pacific Time today, U.S. District Court Judge Virginia Phillips denied the Department of Justice's request for a stay pending the government's appeal of Log Cabin Republicans v. United States. It was not clear from her ruling if she had independently considered the government's request for a 5-day stay so that the government could seek a stay from the U.S. Court of Appeals for the Ninth Circuit.
At the end of a day in which the Defense Department announced that military recruiting stations are to accept applications from out GLB servicemembers, the ruling from Phillips -- though expected after Phillips tentatively denied the stay at a hearing on Monday -- was one more blow to "Don't Ask, Don't Tell," the name given to the 1993 law and military regulations requiring the discharge of out GLB servicemembers.
Calling the government's additional evidence provided in its request for the stay "conclusory and unpersuasive," Phillips found that all of the four factors for granting a stay weighed against the government's request.
R. Clarke Cooper, the executive director of LCR, said in a statement, "Judge Phillips is right to stand with servicemembers by rejecting President Obama's request to continue this discriminatory policy.
"It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen," he continued. "With recruiters accepting gay and lesbian applicants and a week having passed without incident, it is clear that our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom."
It was not immediately clear if the government would appeal the denial of a stay, although its earlier request for a five-day stay to do so makes the appeal appear likely. If the Ninth Circuit denies the stay, the government could appeal that denial to the U.S. Supreme Court. The stay request, coming out of a court in the Ninth Circuit, would be considered by Justice Anthony Kennedy, who can refer the matter to the whole Supreme Court or decide the matter himself.
DADT has been prohibited from being enforced by Phillips's order for more than 175 hours.
Read the order: Order Denying Stay.pdf
In an order entered by the U.S. Ninth Circuit Court of Appeals on Monday, the court set the schedule for the appeal of the Log Cabin Republicans v. United States, a step the government set in motion when it filed a Notice of Appeal on Oct. 14 of U.S. District Court Judge Virginia Phillips's decision striking down the military's "Don't Ask, Don't Tell" policy.
According to the order, the government will not be required to file its appeal brief until Monday, Jan. 24, 2011. The attorneys for LCR are required to file their response by Tuesday, Feb. 22, and the government's reply is required to be filed by 14 days following the LCR filing. (The reason for what may seem like "lag time" to some is that, unlike in the challenge to Proposition 8 in Perry v. Schwarzenegger, none of the parties here have requested an expedited appeal. At least, not yet.)
The most important fact to be gleaned from this schedule is the government will have seven weeks after the Dec. 1 report is due from the Pentagon working group reviewing DADT repeal implementation before it needs to file any substantive response to Phillips's September decision declaring DADT unconstitutional. What's more, this deadline falls well after the end of the "lame-duck" session of the 111th Congress, when legislative repeal of 10 U.S.C. 654 -- the DADT law -- could be finalized. This schedule, in other words, gives the Obama administration the room to end DADT before needing to defend DADT on appeal.
Whether the administration will succeed in ending DADT before that, however, remains to be seen.
Christian Berle, deputy executive director of LCR, wrote to Metro Weekly in a statement about the schedule, "Log Cabin Republicans is ready and able to defend this ruling, and the rights of all servicemembers, all the way to the United States Supreme Court, if necessary.
"We expect that the Ninth Circuit will once again recognize the fundamental liberty at stake with this failed policy as it did in Witt v. Department of the Air Force in 2008. Log Cabin Republicans has always pursued a multi-front strategy, aggressively supporting legislative action while challenging President Obama and his attorneys in court to uphold these basic, constitutional rights."
The Perry v. Schwarzenegger plaintiffs filed their opposition papers in the U.S. Court of Appeals for the Ninth Circuit on Monday evening. The plaintiffs, led by attorneys Ted Olson and David Boies, are opposing the standing of the Proposition 8 proponents and Imperial County to appeal. Regardless of the standing decision, however, the plaintiffs urge the Ninth Circuit to uphold U.S. District Court Judge Vaughn Walker's Aug. 4 ruling that struck down Proposition 8 as unconstitutional.
The question of whether the proponents or Imperial County have standing to bring the appeal could end the case immediately. As attorney Theodore Boutrous, Jr. explained on a conference call with reporters on Tuesday afternoon, the standing issue is jurisdictional, meaning that the court must determine the issue regardless of whether the parties raise it. Standing relates to whether there is an actual "case or controversy," which is constitutionally required before a federal court can hear a case.
The plaintiffs, slected by the American Foundation for Equal Rights to bring the challenge, focused, however, on the two constitutional bases given by Walker for striking down Proposition 8: due process and equal protection.
As to due process, they argued:
The “freedom of personal choice in matters of marriage” is a well-established fundamental right. In more than a dozen cases over the last century, the Supreme Court has reaffirmed that the right to marry is “one of the liberties protected by the Due Process Clause,”; “essential to the orderly pursuit of happiness by free men,”; and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” Because Proposition 8 burdens that fundamental right, it is unconstitutional unless Proponents can demonstrate that it is “narrowly drawn” to further a “compelling state interest[ ].”
And, for equal protection, the plaintiffs told the Ninth Circuit:
Proposition 8 is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians (id.)—who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, or religiously unacceptable. With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry.
Despite the indisputably invidious effects of Proposition 8, Proponents contend that the measure is consistent with the Fourteenth Amendment’s commitment to dignity and equality because laws targeting gay men and lesbians are not subject to heightened equal protection scrutiny and because Proposition 8 is rationally related to legitimate state interests. They are wrong on both counts.
The proponents of Proposition 8 and Imperial County can file replies to the plaintiffs' arguments before Nov. 1, according to the schedule previously set by the Ninth Circuit. The oral arguments, yet to be scheduled, are to be the week of Dec. 6.
In a sign of the wide-reaching impact of U.S. District Court Judge Virginia Phillips's injunction halting enforcment of the military's "Don't Ask, Don't Tell" policy, Pentagon spokeswoman Cynthia Smith today wrote that "[r]ecruiters have been given guidance, and they will process applications for applicants who admit they are openly gay or lesbian."
The statement provided by Smith in an email to Metro Weekly, and first reported by the Associated Press, comes on the heel of a report in The New York Times that Omar Lopez, who is an out gay man, was turned away at a recruiting station in Texas because of his sexual orientation despite the judge's injunction resulting from the Log Cabin Republicans v. United States case.
Smith also wrote that "[r]ecruiters are reminded to set the applicants' expectations by informing them that a reversal in the court's decision of the "Don't Ask, Don't Tell" law/policy may occur."
To that end, the Department of Defense is awaiting a ruling from Phillips on the government's request to stay the injunction pending the government's appeal of the case to the U.S. Court of Appeals for the Ninth Circuit. The hearing on the stay request, held Monday afternoon, ended with Phillips giving a tentative ruling against granting the stay.
Smith noted, as reported earlier by Metro Weekly, "On Oct. 15, Undersecretary for Personnel and Readiness Clifford Stanley sent a memorandum reinforcing DoD's policy not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline."
Servicemembers Legal Defense Network executive director Aubrey Sarvis urged caution in a statement, saying, "During this interim period of uncertainty, service members must not come out and recruits should use caution if choosing to sign up. The 'Don't Ask, Don't Tell' law is rooted in any statement of homosexuality made at anytime and to anyone. A higher court is likely to issue a hold on the injunction by Judge Phillips very soon. The bottom line: if you come out now, it can be used against you in the future by the Pentagon."
[UPDATE: Perhaps the most interesting bit of information regarding today's announcement came from The Atlantic's Marc Ambinder, who noted, "Pentagon's general counsel made the decision." The general counsel is Jeh Johnson. Johnson is the co-chair of the Pentagon working group charged with presenting a report to Defense Secretary Robert Gates by Dec. 1 on implementing DADT repeal. Assuming Ambinder's reporting to be accurate, then the co-chair of the working group made the decision that, with guidance to recruiters, the change in recruiting policy could be made immediately.]
[FURTHER UPDATE: Lt. Dan Choi, discharged from the U.S. Army earlier this year, has tweeted that he is on his way to enlist in the U.S. Marine Corps. David Badash writes that Choi said, "It's a day of celebration," while waiting outside the enlisting office in New York City.]
From The Advocate's Andrew Harmon, who was at today's hearing:
U.S. district judge Virginia A. Phillips issued a tentative ruling Monday rejecting the government’s request for a stay in the injunction against "don't ask, don't tell" but will issue a formal ruling by late Monday afternoon or Tuesday morning.
This is the worst of all worlds for the Department of Justice attorneys arguing for the stay, because Phillips has more or less said that she doesn't plan on giving them the stay while at the same time not issuing a ruling that is capable of being appealed to the U.S. Court of Appeals for the Ninth Circuit. Until Phillips issues an official denial of the request for a stay, in other words, DOJ just has to sit and wait.
In the meantime, the government's argument for the necessity of a stay, as the attorneys for Log Cabin Republicans argued, is being diminished by the fact that the government is currently not enforcing DADT. Every hour is more proof LCR can point to that the "irreparable harm" that must be shown to get a stay is not occurring in this situation.
Assuming Phillips denies the stay requests -- recalling that the government asked for a stay pending appeal or, in the alternative, a brief stay to request a stay from the Ninth Circuit -- then the military will continue to be prohibited from enforcing DADT until at least a request for a stay can be made to the Ninth Circuit and the Ninth Circuit, if it chooses to do so, grants it. If they, too, deny the request, then the government can file a request with the U.S. Supreme Court. The stay request, coming out of a court in the Ninth Circuit, would be considered by Justice Anthony Kennedy, who can refer the matter to the whole Supreme Court or decide the matter himself.
[UPDATE: LCR reports that their attorneys say that Judge Phillips will be ruling on Tuesday, not tonight.]
At 2:30 p.m. PT Monday, U.S. District Court Judge Virginia Phillips will hold a hearing to determine whether the government is correct that the "Don't Ask, Don't Tell" policy needs to stay in effect while the government appeals her ruling in Log Cabin Republicans v. United States that DADT is unconstitutional.
The technical issue being considered is whether a stay should be issued that will put a hold, in effect, on the injunction she issued on October 12 that stopped all enforcement of DADT as a result of the LCR case.
The next day, Defense Secretary Report Gates addressed his concern about the ruling. The AP, via Politico, reported that Gates said that changing DADT "is an action that requires careful preparation and a lot of training. ... It has enormous consequences for our troops."
On October 14, Undersecretary of Defense for Personnel and Readiness Clifford Stanley filed a declaration in Phillips's court stating, "Requiring the Department to cease all enforcement of DADT, immediately and worldwide, will cause significant disruptions to the force in the short term and, in the long term, would likely undermine the effectiveness of any transition to accepting open service by gays and lesbians in the event the law is repealed or eliminated."
The declaration was filed in conjunction with the government's formal request for a stay, in which it argued that "immediate implementation of the injunction would disrupt [the Pentagon working group's DADT repeal implementation] review and frustrate the Secretary’s ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government's critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces."
Stanley, one day later, however, confirmed in a memorandum released by the Department of Defense that "immediate implementation of the injunction" was occurring. Stanley stated the terms of the injunction -- including immediate suspension of "any investigation, or discharge, separation or other proceeding" begun under DADT. He noted that a stay had been requested, then wrote, "In the interim, the Department of Defense will abide by the terms of the injunction."
The Palm Center -- a research center based out of the University of California, Santa Barbara, that has provided significant research on DADT in the past decade -- has focused in on Gates's comments about the impact of stopping DADT enforcement by setting up a website that aims at tracking its impact.
Aaron Belkin, the director of the Palm Center, told Metro Weekly on Sunday night, "My sense -- from the moment Secretary Gates made the remark -- is that the Pentagon is saying it can't do something that it is already doing."
This is a point that he and others would argue was confirmed by Stanley's memorandum of October 15 and that Palm hopes to drive home with the new site.
With a running timer, now reading 127:55:00, the site -- Enormous Consequences -- details the number of incidents reported showing what it calls the "Consequences of Allowing Gays to Serve Openly," namely unit cohesion or disciplinary problems, resignations, privacy issues or any other problems that arise during the injunction.
When questioned about the site and whether Gates was referring to "consequences" occurring literally in the hours following the end of the enforcement of the policy, Belkin replied, "If he’s saying he doesn’t expect consequences in the first week, when exactly will the enormous consequences become clear? When was he referring to?"
To track any incidents, Palm has submitted a Freedom of Information Act request seeking any relevant information and will track any news suggesting such consequences.
Asked if Palm will know of the incidents that may occur, Belkin said, "To me, 'enormous consequences' means something that you can see."
The tally for all of the areas of possible incidents was at zero on Sunday evening. Belkin said he didn't know whether he would need to update the site, but said, "I've never seen any other organization have any negative consequences of lifting a gay ban.
"As a social scientist, I guess we’ll just have to wait and see the data, but I don't think we'll see any," he added. "I think we would have seen them already."
When Phillips begins her hearing Monday, the timer will read 146:30:00.
And if Phillips, the U.S. Court of Appeals for the Ninth Circuit or, ultimately, U.S. Supreme Court issue the stay requested by the government, Belkin -- ever the researcher -- said, "If and when that happens, we'll turn off the [timer] and look at this as one discrete period, and look to see if there were any negative consequences during this period."
The government has not yet said what it will do in the case the stay is granted, but Stanley said in his October 15 memorandum that he "will issue additional guidance" if that happens.
This afternoon in California, attorneys representing Log Cabin Republicans filed a brief in opposition to the U.S. government's request for a stay of U.S. District Court Judge Virginia Phillips's injunction issued in Log Cabin Republicans v. United States.
Arguing that the government met none of the four standards required to be met for a stay to be granted, LCR opens its brief by curtly noting:
This is at least the government's fifth request for a stay in this case, following the stay it requested in its Objections to plaintiff’s proposed judgment and the three prior requests identified in plaintiff's Response to those Objections.
Dan Woods, the attorney from White & Case arguing the case for LCR said in a statement shortly after the filing, "As our brief shows, the government has clearly failed to justify why a stay should be granted."
In the filing, Woods argues on behalf of LCR that the government is unlikely to succeed on appeal on the constitutional merits of its case, that the government will not be irreparably harmed if a stay is not granted, that a stay will injure LCR members and "all homosexual servicemembers" and that the public interest weighs against granting a stay.
In his statement, Woods noted, "The position of the government that the court’s injunction will prove harmful to the nation's military strength and readiness is contradicted by the evidence in the case. In fact, because Don't Ask, Don't Tell weakens our national security, as the judge's ruling found and as the President has repeatedly admitted, the effect of staying the injunction would be to continue to weaken our national security. The government should be ashamed to be seeking that result."
In an interesting move, LCR included in its filing a copy of the tweet sent out on Thursday from President Barack Obama's twitter account, which stated, "Anybody who wants to serve in our armed forces and make sacrifices on our behalf should be able to. DADT will end & it will end on my watch."
Christian Berle, deputy executive director of LCR, said in a statement, "At the same time the Pentagon was complying with the injunction against enforcing 'Don't Ask, Don't Tell,' President Obama’s attorneys were making the argument that compliance would be impossible."
He continued, "Granting this stay would perpetuate a grave injustice against servicemembers whose only desire is to defend our country honorably and honestly."
According to the filing, a hearing on the motion for a stay will be held at 2:30 p.m. Pacific, Monday, Oct. 18.
Undersecretary of Defense for Personnel and Readiness Clifford Stanley issued a memorandum today, obtained by Metro Weekly, to the secretaries of the service branches detailing "Homosexual Conduct Discharge Processing."
It is brief, detailing Tuesday's ruling in Log Cabin Republicans v. United States and the stay request -- in which he filed a declaration -- filed on Thursday. Stanley also, notably, states that if a stay is granted, "I will issue additional guidance."
He warns servicemembers "that altering their personal conduct in this legally uncertain environment may have adverse consequences for themselves or others should the court's decision be reversed." In other words, and similar to warnings issued by Servicemembers Legal Defense Network, gay and lesbian servicemembers should not come out at this time.
Today, Servicemembers United put out a news release to several hundred people, alerting LGBT and other progressive bloggers and other media to the fact that "DOJ 'Declines to Appeal' Right Wing Legal Victory This Week."
Alex Nicholson, executive director of Servicemembers United, announced in the release, "In the very same week, the administration says that it absolutely must appeal a federal court's decision on 'Don't Ask, Don't Tell' while it orders the Justice Department not to appeal a federal court's ruling in favor of the conservative Alliance Defense Fund. This contradiction is simply incomprehensible and insulting."
The fact, however, is that the actions in the two cases are neither a contradiction nor insulting. Also, if one slows down long enough to look at the cases, the distinctions are easily comprehensible.
First, and most importantly, the ADF case -- Boardley v. Department of the Interior -- involved a regulation and not a statute like that involved in Log Cabin Republicans v. United States. That distinction, ultimately, ends any comparison sought by Nicholson between the actions in the cases.
As detailed in the Boardley opinion, the provisions challenged there were regulations issued by the Interior Department that "govern '[p]ublic assemblies, meetings,' 36 C.F.R. § 2.51, and the '[s]ale or distribution of printed matter,' id. § 2.52, within the national parks." The underlying law -- which gives the Secretary of the Interior the authority to issue "such rules and regulations as he may deem necessary or proper for the use and management of the parks" -- was not at issue in the case.
In other words, there was no law passed by the Congress that the executive has a constitutional obligation to enforce. There is simply no separation of powers issue in the ADF case. Since a regulation -- a creation of the executive -- was at issue, the executive is free to alter that regulation at its will. That precisely is what happened in Boardley. After getting smacked down by the U.S. Court of Appeals for the D.C. Circuit for its enforcement of an unconstitutional regulation, the Park Service altered that regulation.
When a law -- like 10 U.S.C. 654, the "policy concerning homosexuality in the armed forces," better known as "Don't Ask, Don't Tell" -- is challenged, however, the executive's obligations are different because the legislative branch has spoken on the matter by passing a law. That is the situation at issue in the LCR case.
The second, but far less relevant, distinction: Boardley had a full hearing before an appellate court. The case had been appealed by ADF attorneys to the D.C. Circuit, which unanimously held the regulation was unconstitutional.
There is more in the 29-page Boardley appellate opinion relating to the state of the law in the area and the lack of contradictory rulings from other courts that arguably draws further distinctions between it and the LCR case, but, suffice it to say, Servicemembers United's news release does not accurately convey the facts, comparisons or distinctions of either case.
Nicholson sent the following statement to Metro Weekly responding to the claims made by this report:
"It is insufficient to keep saying you can't compare apples and oranges in these cases that demonstrate the administration's ability to decline to appeal a federal court decision. They may be different, but you certainly can draw instructive and enlightening comparisons between apples and oranges - they're both round, they're both organic, and they're both fruit. The point being made in pointing out the different approaches is that the administration clearly does not have to appeal every case, and it is interesting that they seem more interested in defending Congress' will than their own. Also, it's interesting that in the Alliance Defense Fund case the administration is willing to let civil liberties rule the day, but not when it comes to gay issues. It is my duty, obligation, and responsibility to hold the administration's feet to the fire on 'Don't Ask, Don't Tell,' and I will not decline to live up to that responsibility because the analogy is not perfect. If we wait for perfection, or for the president, we might wind up with nothing."
The full SU release is below the jump.
[Photo: Servicemembers United executive director Alex Nicholson in his offices. (Photo by Todd Franson.)]
Former Acting Solicitor General and Duke Law professor Walter Dellinger, who served in the latter part of the Clinton administration, was on The Rachel Maddow Show on Thursday evening, giving his view (see below), on which he had been quoted earlier in the day in The Washington Post, of the Department of Justice's options in addressing the "Don't Ask, Don't Tell" case, Log Cabin Republicans v. United States.
On Maddow's show, Dellinger, in part, said:
I think the government really has no choice but to appeal the case because we don't want a system where a single federal judge can invalidate an act of Congress and the President simply say, "Well, that's it. We're not going to seek to appeal that."
Imagine, Rachel, three years down the road if someone is challenging the health care individual mandate ... and there's a Republican president in the White House ... Suppose one district judge held it unconstitutional. You wouldn't want a situation where the federal government could just say, "We're not going to appeal."
I wrote earlier this week about how Justice would be likely to seek a stay of the LCR ruling (which it did on Thursday) because allowing "a single federal trial judge to put an abrupt and total stop to a 17-year-old law relating to military policy" would be highly unusual.
Dellinger's underlying message, moreover, is key to the point that I've made repeatedly over the past year and a half. In March, I wrote about "Equality and the Rule of Law" at Law Dork:
The fact is that there are very few times when DOJ chooses not to defend laws. This is because, in our system of government, the decision of whether or not something becomes a law is made by congressional passage and presidential signature or veto. The decision of whether something that has been passed into law is constitutional is left to the courts.
Supporters of equality should want this system of laws. Changes in the executive should not result in changes as to which laws are going to be enforced. As has been seen recently in Virginia, changes in the executive branch can result in the new executive wanting to roll back equality protections. If the Employment Non-Discrimination Act becomes law during Obama’s presidency, would LGBT groups want a system in which the next president – pressured by religious extremists – refused to enforce the law and, in fact, opposed its constitutionality in court?
Also in March -- while discussing "The Role of Justice" -- I briefly mention a situation in 1996 when the Clinton administration announced it would not defend a new law banning HIV-positive people from serving in the Armed Forces, noting that the determination was made when the new law "had not been subject at that point to review by any court."
Here, however, DADT has been subject to review by many courts -- including many appellate courts and even at least one of those, the First Circuit in the Cook case, after the Supreme Court's decision in Lawrence v. Texas -- that have reached decisions conflicting with the decision reached in September by Phillips.
Dellinger, however, goes on to suggest the administration "consider" what even he calls a "bold step" -- that the government could appeal the ruling but "tell it that in the government's view it's unconstitutional ... because it's harmful to the military."
In my earlier writings and questions to the White House, I have been pressing Obama and the administration to explain whether it views the Defense of Marriage Act and/or DADT as constitutional. As I wrote regarding DOMA:
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.
I, too, would like -- as Kerry Eleveld has sought this week -- for Obama to state his view on the constitutionality of DADT. Dellinger's "bold" suggestion that the Justice Department express that view as the government's view in its appellate filing goes a step further. While his is a robust interpretation of the presidential prerogative to advance the president's view of the constitutionality of a law in court, it does at least have the benefit of trying its best to maintain a commitment to the rule of law. As Dellinger said, even in his bold plan, he is "leaving the final decision with the court."
As the LCR case moves closer to yet-to-be-set filing deadlines, the administration likely will be faced with considering Dellinger's option, as well as countless others that will be offered to it in the coming weeks.
* * *
Watch Dellinger talk with Maddow:
The U.S. Department of Justice filed its request seeking a stay of U.S. District Court Judge Virginia Phillips's ruling in Log Cabin Republicans v. United States, as reported by Metro Weekly here. [UPDATE: DOJ also filed a Notice of Appeal today, formally announcing its appeal of the case -- noted in the stay filing documents -- to the U.S. Court of Appeals for the Ninth Circuit.]
This is a review of the documents filed and the details of the filing.
First and foremost, the government intends to appeal the ruling. From the declaration filed today in accordance with the motion requesting a stay pending appeal, Under Secretary of Defense for Personnel and Readiness Clifford Stanley writes:
I am aware of the Court's decision in this case that [10 U.S.C.] § 654 [-- the DADT law --] and the Department's associated regulations violate the First and Fifth Amendments of the Constitution. In this declaration I will not address the merits of the Court's decision. I submit this declaration to make the following point: the Government intends to appeal the Court's decision. During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas. The magnitude of repealing the DADT law and policy is demonstrated by the Department's ongoing efforts to study the implications of repealing DADT, which I outline in detail below.
What's more, Stanley writes that, in part, this is done for the benefit of "gay and lesbian servicemembers." He writes:
Further, an injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty. If the Court's decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court's decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed.
The reason why DOJ apparently believes an appeal is justified is referenced most directly in the Memorandum of Law's argument that a stay should be entered because "At A Minimum, This Case Raises Serious Legal Questions."
In this section, DOJ attorney Paul Freeborne writes:
DADT has been challenged myriad times since it was enacted in 1993, and several appellate courts have upheld the constitutionality of this statute. Indeed, the Ninth Circuit in Witt rejected as inappropriate a facial challenge to the statute. Witt v. Dep’t of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008). Therefore, at a minimum, this Court’s opinion holding DADT facially unconstitutional presents serious legal questions that favor entering a stay pending the resolution of this case by appellate courts.
Later, Freeborne details themilitary's claim that an immediate end to DADT as required by the injunction "Requires A Precipitous Change In Policy That Threatens the Public Interest in A Strong Military."
Developing proper training tools regarding the end of DADT and communicating any new policy effectively to the millions of personnel at issue will take time and effort and cannot happen immediately, especially for commanders and servicemembers serving in theaters of active combat. The failure to provide proper training and effective communication regarding any change in the enforcement of DADT would be disruptive to military commanders and to servicemembers as they attempt to carry out their mission and military responsibilities, especially in active theaters of combat. The Department is actively engaged in developing educational and training tools and a plan for effective communication so as to allow the orderly discontinuation of DADT, and the injunction should be stayed so that process can be completed.
The documents filed by DOJ today:
Come back to Poliglot for further developments ...
[UPDATE: For analysis of today's filings, read "Examining the DOJ Request for a Stay."]
This afternoon, two days after U.S. District Court Judge Virginia Phillips issued an injunction halting all enforcement of the military's "Don't Ask, Don't Tell" policy, the U.S. Department of Justice filed a request that Phillips stay her order in Log Cabin Republicans v. United States pending an appeal of the case to the U.S. Court of Appeals for the Ninth Circuit, according to LCR.
The government also announced in one of the filings that it "intends to appeal the Court's decision."
Christian Berle, deputy executive director of LCR, told Metro Weekly prior to the filing, "Attorneys from White and Case have been in contact with [Department of Justice Civil Division Attorney] Paul Freeborne this afternoon (morning in Los Angeles), where Freeborne indicated DOJ's intent to file a request for a stay pending appeal from Judge Phillips in District Court."
Berle continued, "If Phillips denies that request, they intend to ask for an administrative stay while she considers their motion for a stay. If Phillips denies that ruling, they will make a request for an emergency stay from Phillips so that they can request a stay from the Ninth Circuit."
In its request, the government filing formally stated:
Defendants the United States of America and Robert M. Gates, Secretary of Defense, hereby apply ex parte for an order staying the application of the Court’s entry of a permanent injunction in this case pending appeal. In the alternative, defendants request that the Court grant an immediate stay of its injunction while the Court considers defendants’ application for a stay pending appeal. At a minimum, should the Court decline to enter a stay pending appeal or an immediate stay to permit it to consider defendants’ request for a stay pending appeal, defendants request that the Court enter an immediate stay to permit the Court of Appeals an opportunity to consider entry of a stay.
News of the stay request came hours after Servicemembers Legal Defense Network announced that it had received an email sent today by Air Force Judge Advocate General Lt. Gen. Richard C. Harding to members of the JAG Corps advising that "the Department of Defense will abide by [the] terms" of Phillips's injunction while "the United States Government is contemplating whether to appeal and to seek a stay of the injunction."
Harding concluded by noting, "Further guidance on this and related issues will be provided as it is made available by DoD. Inform your commanders of this injunction and its terms."
Defense Department spokeswoman Cynthia Smith clarified in an email to Metro Weekly, "Earlier today, the Staff Judge Advocate Generals from the Military Services, in consultation with the OSD Office of General Counsel, sent to their Service Staff Judge Advocate counterparts in the field an email informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 USC 654, commonly known as the 'Don't Ask/Don't Tell' statute. The email noted that the US Government is contemplating whether to appeal and to seek a stay of the injunction."
Smith continued, "The Department of Defense will of course obey the law, and the email noted that, in the meantime, the Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling."
With news of today's expected filing, the directives will remains in effect, although it is not clear how long -- if a stay is granted -- they will be in effect.
In a statement about the anticipated filing, Berle added, "After years of fighting this lawsuit, Log Cabin Republicans expected that the Obama administration would continue to pull out all the stops to defend 'Don't Ask, Don't Tell.'
"Log Cabin Republicans will continue to advocate on behalf of the American servicemembers who everyday sacrifice in defense of our nation and our Constitution. If this stay is granted, justice will be delayed, but it will not be denied," he said. "Meanwhile, we urge Senate Majority Leader Harry Reid to do what it takes in the lame duck session to end 'Don't Ask, Don't Tell' legislatively. If Senator Reid treats the minority party fairly, the votes will be there to end 'Don't Ask, Don't Tell' once and for all."
Early Wednesday morning, I wrote, "What Is DOJ Thinking?"
Today, the bigger question appears to be, "What is DOD thinking?"
As reported in The New York Times, the Department of Defense does not appear to be following U.S. District Court Judge Virginia Phillips's order that all enforcement of the "Don't Ask, Don't Tell" policy be halted immediately. From the Times:
With a briefcase full of commendations under his arm, Omar Lopez walked into an Austin, Tex., recruiting office Wednesday. Mr. Lopez, 29, had served nearly five years in the Navy. He was honorably discharged in 2006 for “homosexual admission,” according to documents he carried. He wanted to re-enlist.
But recruiters turned him away hastily, saying they had no knowledge of any injunction or any change in military policy.
The attorney for Log Cabin Republicans, Dan Woods of White & Case, has followed up today with the attorneys for the government. (Download the letter here: WoodsLtr-101410.pdf)
Please let us know immediately what steps the government has taken to communicate the terms and requirements of the Court's order to military personnel, including field commanders and military recruiting offices, who are in a position to violate the requirements of the injunction under the cover of ignorance of its terms or existence.
In light of these developments and as noted on Wednesday, I am posting my communications with Defense Department spokeswoman Cynthia O. Smith about this issue below the jump. Metro Weekly specifically requested information on Tuesday about "any guidance to commanders in the field regarding Phillips's order that all investigations related to DADT enforcement be suspended immediately." Metro Weekly received no response at that time.
On Wednesday, Metro Weekly followed up by asking whether "the Department of Defense stopped enforcing 10 U.S.C. 654 at this time, as it was ordered to do so more than 24 hours ago." Metro Weekly has received no response.
So, what is DOD thinking?
[UPDATE: Servicemembers Legal Defense Network announced "an email was sent to JAG officers in the U.S. Air Force stating that until the Department of Justice makes a decision on the recent ruling by judge Virginia A. Phillips, the Air Force needs to abide by the district court injunction."
Lt. Gen. Richard C. Harding, Air Force Judge Advocate General, wrote:
Members of The Judge Advocate General’s Corps,
On 12 October 2010, a federal district judge of the Central District of California issued an injunction barring the enforcement or application of 10 USC 654, commonly known as the "Don't Ask, Don't Tell" statute. A copy is attached. At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms ....
DOD spokeswoman Cynthia Smith did not respond immediately to an email requesting information about whether a similar email was sent to the other branches.]
For more than 24 hours, the United States has been constrained from enforcing the military's "Don't Ask, Don't Tell" policy. Although CNN is reporting that an appeal of Log Cabin Republicans v. United States is forthcoming and Defense Secretary Robert Gates was warning of the dangers of an immediate end to the policy, White House press secretary Robert Gibbs was more circumspect, saying, "time is ticking on the policy of 'don't ask, don't tell.'"
The Obama administration is expected to appeal as soon as Wednesday a federal judge's ruling that halted the Defense Department from enforcing its policy that bars openly gay people from military service, according to senior administration officials familiar with the government's plans."
Aside from Gates's comments, neither the Department of Defense nor the Department of Justice had much in the way of comment today.
A Department of Defense spokeswoman has not answered, in three different requests, whether any changes or guidance to comply with the ruling has been issued. A Department of Justice spokeswoman, meanwhile, when asked if there is any update as to DOJ's response, wrote via email to Metro Weekly this afternoon, "Not yet."
And I continue asking, "What is DOJ thinking?"
I'm going to try and avoid going too deep into the woods tonight -- because it's late and because I'm tired -- but I have to note the essential facts that exist right now, a result of the permanent injunction granted Tuesday by U.S. District Court Judge Virginia A. Phillips in the Log Cabin Republicans v. United States case:
In the Massachusetts cases regarding the Defense of Marriage Act (Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services), DOJ worked with the plaintiffs to get a stay put in place while the appeal is pending prior to the issuance of the judgment by U.S. District Court Judge Joseph Tauro.
In the Proposition 8 case (Perry v. Schwarzenegger), the proponents had requested a stay from U.S. District Court Judge Vaughn Walker pending any appeal before Walker even issued his ruling.
Here, however, the U.S. Department of Justice apparently had no plans in place to deal with one of the most likely outcomes of Judge Phillips's ruling. This, despite the DOJ statement in its earlier filing (pdf) before Phillips:
Entering an injunction with immediate effect would frustrate the ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy. An injunction with immediate effect will put DoD in the position where it must implement ad hoc potentially inadequate policies at a time when the military is in the midst of active combat operations.
So, the question I end this day with is: What is DOJ thinking?
The answer could go in several directions:
All of these questions, of course, echo out to the White House and President Barack Obama, who ultimately could direct the Justice Department not to appeal the injunction. He also, in the opposite direction, could direct the DOD to defy Phillips's order. (This is -- as David Law put it at Above the Law -- the "Virginia Phillips has made her decision; now let her enforce it" option.)
There are legitimate questions to be discussed about whether either or both of those are proper actions, but the singular point on which I'd like to focus people's attention tonight is the strange circumstance of the Justice Department -- even if only for a half-day at this point -- allowing a single federal trial judge to put an abrupt and total stop to a 17-year-old law relating to military policy.
The questions this raises multiply as one moves from the initial and obvious questions. Were any directives sent to commanders in the field alerting them to this changed circumstance? If so, what did they say? If not, what's happening right now? If the law is invoked and a DADT investigation is begun by an unknowing commander, is someone in contempt of court? How would Phillips deal with such a situation?
Of course, in the morning, a motion for a stay pending appeal could be filed in the Ninth Circuit, and the motions panel could -- and I imagine, likely would -- grant an emergency, temporary stay until it could decide whether to grant the stay pending appeal.
But, in the meantime, there are a bundle of law students' constitutional law, federal courts and civil procedure exams getting questions written for them in real time.
I am seeking out others' views on this issue -- particularly as the circumstance becomes more strange every hour that passes without DOJ action -- and will provide them as I receive any.
[UPDATE @ 5 P.M. WEDNESDAY: Some people expected a filing by now, but it's clear from everyone with whom I've spoken today that they agree this is worth very close attention being paid to it.]
[NOTE: This post was updated throughout Tuesday evening.]
In a move expected by most legal observers, the U.S. Department of Justice this afternoon filed notices of appeal in two cases striking down the federal definition of marriage, contained in the Defense of Marriage Act, as unconstitutional.
U.S. District Court Judge Joseph Tauro had ruled on July 8 in the cases, Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services, that Section 3 of DOMA was unconstitutional on several grounds, finding that the marriage definition violated the equal protection and due process guarantees, as well as the Spending Clause and Tenth Amendment.
Gay & Lesbian Advocates & Defenders, which argued the Gill case on behalf of the plaintiffs, issued a statement moments after the government's filing.
"We fully expected an appeal and are more than ready to meet it head on," Mary L. Bonauto, GLAD’s Civil Rights Project Director, said in the statement. "DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits. We are confident in the strength of our case."
The White House issued no comment on the filing and directed questions to DOJ.
The filing of the notice means that the record of the trial court case will be sent to the U.S. Court of Appeals for the First Circuit. Once the record is complete, DOJ will have 40 days to file its brief. GLAD or Massachusetts, depending on the case, will then have 30 days to file its brief. The government then has 14 days to file a reply brief.
Human Rights Campaign spokesman Michael Cole said in an email to Metro Weekly, "While most advocates including GLAD expected the administration would appeal the DOMA cases, we remain disappointed and frustrated that they continue to defend a law that serves no purpose but to harm our families. However, GLAD and Massachusetts Attorney General Martha Coakley have already made an unassailable case against DOMA. We are confident they will prevail."
Within hours of the filing of the notices of appeal, the head of the DOJ Civil Rights Division, Assistant Attorney General Thomas Perez, spoke at the LGBT Heritage Day Celebration in Cleveland, Ohio.
Focusing primarily on the importance of enforcement of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act to DOJ’s mission, Perez did not mention the DOMA cases or the challenge to the military's "Don't Ask, Don't Tell" policy in his remarks.
Earlier on Tuesday, U.S. District Court Judge Virginia A. Phillips halted all enforcement of DADT by issuing a permanent injunction in the Log Cabin Republicans v. United States case.
Josh Williams contributed to this report from Cleveland. The full statement from GLAD can be found below the jump.
[NOTE: This post was updated throughout Tuesday afternoon.]
U.S. District Court Judge Virginia A. Phillips has suspended enforcement of the military's "Don't Ask, Don't Tell" policy as a result of her earlier opinion in Log Cabin Republicans v. United States that the policy is unconstitutional.
Ordering the government "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding" begun under DADT, Phillips's permanent injunction is about as broad an order as she could have issued in the case.
The government has 60 days -- until Monday, December 13, because the 60th day falls on a weekend -- to appeal the trial court decision. In the interim, the government could seek a stay of Phillips's decision from Phillips, the U.S. Court of Appeals for the Ninth Circuit or, ultimately, the U.S. Supreme Court.
Christian Berle, deputy executive director of LCR, praised the judgment in a statement.
"No longer will our military be compelled to discharge servicemembers with valuable skills and experience because of an archaic policy mandating irrational discrimination," he said. "The United States is stronger because of this injunction, and Log Cabin Republicans is proud to have brought the case that made it possible."
Asked to respond to the ruling, Cynthia O. Smith, Defense Department spokeswoman, told Metro Weekly via email, "We have just learned of this ruling. We are now studying it and we will be in consultation with the Department of Justice."
She added, "I would refer you to DOJ regarding any potential future litigation."
The Justice Department is reviewing the ruling and had no immediate comment, yet White House spokesman Shin Inouye likewise directed requests for comment to DOJ.
"The Department of Justice is studying the court’s ruling," Inouye wrote in an email to Metro Weekly. "Any specific questions about this pending litigation should be directed to the Department of Justice."
Phillips had asked the plaintiffs to propose a judgment and the defendant -- the United States -- to explain any objections. The plaintiffs asked for a broad declaration, like the one issued today, that all enforcement of DADT should be halted. The Department of Justice argued in response that such an order would be "untenable."
In a key portion of today's judgment, however, Phillips writes that her order "permanently enjoins [the U.S. government] from enforcing or applying the 'Don't Ask, Don't Tell' Act and implementing regulations, against any person under their jurisdiction or command."
She also ordered Defense Secretary Robert Gates "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under [DADT], on or prior to the date of this Judgment."
The government also had asked the court to "defer entry of any injunction for a reasonable time so as not to interfere with the ongoing and advanced efforts of the political branches." With today's order, Phillips declined to do so. She also declined to issue a stay of the judgment so that the government could seek an appeal, as also was requested by the government. In the absence of a stay to be issued by the Ninth Circuit or the U.S. Supreme Court, DADT cannot be enforced from this point forward unless the government appeals her decision and a higher court reverses it.
Servicemembers Legal Defense Network Legal Director Aaron Tax noted in a statement, however, "This order will likely be appealed by the Justice Department and brought to the U.S. Court of Appeals for the 9th Circuit where her decision may well be reversed. Servicemembers must proceed safely and should not come out at this time."
Alexander Nicholson, executive director of Servicemembers United and a plaintiff in the case, said in a statement, "This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking."
Human Rights Campaign president Joe Solmonese called for the administration not to appeal Phillips's ruling.
"The administration should comply with her order and stop enforcing this unconstitutional, unconscionable law that forces brave lesbian and gay Americans to serve in silence," he said. "The President has said this law harms our national security and we believe it would be a mistake to appeal the decision. Each additional day that this unjust law remains in force is one more day the federal government is complicit in discrimination."
The news comes as court watchers and equality advocates await a decision by the Department of Justice on whether it will appeal U.S. District Court Judge Joseph Tauro's decision striking down Section 3 of the Defense of Marriage Act in Massachusetts v. U.S. Department of Health and Human Services. The deadline for DOJ to file notice of its intention to appeal that case is today. [UPDATE: The DOJ filed its notice of appeal. Read the story here.]
[Photo: Alex Nicholson, who testified in the LCR case, in his Servicemembers United offices. (Photo by Todd Franson.)]
From the Family Research Council's Tony Perkins:
Four paragraphs earlier, Perkins laughably introduced his piece by writing, "Where bullying has occurred, the blame should be placed on the bullies themselves--not on organizations within society who clearly oppose bullying."
What Perkins is writing -- and the Post is publishing -- is that he believes homosexuals should "intuitively" see same-sex attractions as "abnormal" -- and yet he sees no connection to be drawn between his statements and the despair that leads LGBT teens to suicidal thoughts and believes no blame is to be placed on him for the bullying borne of such attitudes.
Both the Post and Perkins should be embarrassed.
Unlike Fred Phelps, Sr. -- who understands and revels in the blame placed on him for his views about LGBT people -- Perkins just dismisses the blame as false and cries out against all opposition to him as an attack on his First Amendment rights.
At least Phelps is honest.
[UPDATE: Jim Burroway at Box Turtle Bulletin looks at Perkins's sources.]
On the evening of October 11, 1998, NPR's Daniel Zwerdling began telling a story on All Things Considered that would become a part of the fabric of the gay experience at the time.
"Matthew Shepard, a 21-year-old student of the University of Wyoming, remains in a coma today," he said. "Doctors say his condition's getting worse after being brutally beaten and then left tied to a fence on the outskirts of Laramie. He was tied there for 18 hours."
The NBC Nightly News broadcast on that somber Sunday evening highlighted the homily of Rev. Roger Schmit, whose church was across the street from the school. He directly addressed the beating, telling his parishioners, "Violence and hatred starts in small ways and grows and grows and grows. The cruelty and hate that was inflicted on Matthew Shepard cries out to each one of us to examine our lives and to do it honestly.
"I challenge you as I challenge myself to look into the corners of our lives, those corners that we don't look at very often. Look there boldly and see what you recognize. Is there hatred there? Are there violent thoughts? Are there violent, hurtful words? Is there ridicule? Do not minimize hate. Do not minimize bigotry."
The Washington Post's Sunday edition detailed how the campus -- on Homecoming weekend -- was beginning to address the tragedy. Tom Kenworthy reported from Laramie, Wyoming: "Amid the usual hoopla -- the marching bands, politicians' floats, equestrian units and fraternity boys drinking beer at 9:30 a.m. -- hundreds of people donned yellow arm bands and marched in tribute to Shepard and the belief that intolerance has no place in the Equality State."
Kenworthy quoted activist Susan Childs as saying, "There's a pall on this city. This is a prime opportunity to do something."
That day, as vigils were held and fears were faced, was National Coming Out Day.
Moments into Monday, at 12:53 a.m. October 12, 1998, however, Matthew Shepard died, with his family -- including his mother, Judy Shepard -- at his bedside.
Twelve years later, although the nation has changed dramatically in many ways, National Coming Out Day has a similar pall over it as the nation faces the shameful reality of the ongoing prevalence of LGBT youth suicide.
Many suicides have received the attention of the media in recent weeks, and Dan Savage's "It Gets Better" effort has focused the attention of the YouTube audience in a way that is powerful and reassuring for those looking for such messages.
The attention was too late for teens like Justin Aaberg, who hanged himself on July 9, 2010, following two years of bullying after coming out as gay at age 13, and the pall remains as more teens complete suicide because of the torment and harassment they receive in their schools, workplaces, churches, communities and even homes.
More specifically, the attention has not yet led to measurable action from lawmakers, who are in recess through the mid-term elections, and the White House has not yet recommended or endorsed any specific plan for federal action.
Valerie Jarrett, a senior advisor to President Barack Obama, spoke movingly at the Human Rights Campaign's National Dinner on October 9 about ending anti-LGBT bullying -- noting that she had met earlier in the evening with Justin Aaberg's mother, Tammy, and his brother, who were attending the dinner. Jarrett did not, however, mention either piece of legislation that was introduced in the 111th Congress aimed at improving the environment for LGBT teens or those non-gender conforming teens who are perceived to be LGBT.
Likewise, although President Barack Obama previously has expressed support for the principle of safe schools -- including at this June's White House LGBT Pride Month reception -- the administration has not specifically endorsed either the Student Non-Discrimination Act or Safe Schools Improvement Act. Neither bill, in fact, appeared in the administration's March "blueprint" for the reauthorization of the Elementary and Secondary Education Act.
Judy Shepard was at the HRC National Dinner on Saturday night, where she met Tammy Aaberg and was recognized from the stage for her tireless efforts to get action taken in the memory of her son. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law nearly one year ago, after more than a decade of her activism.
In the past twelve years, Judy Shepard has been a pillar of strength to young LGBT people across the nation and a model for action to those seeking LGBT equality. It is perhaps easy to forget, though -- 12 years removed -- how quickly Judy Shepard moved beyond her pain to think of the other families across the nation.
At 4:30 a.m. October 12, 1998, the Poudre Valley Health System in Fort Collins, Colorado, released the news that Matthew Shepard had died. In that statement, Judy Shepard said, "Go home, give your kids a hug and don’t let a day go by without telling them you love them."
On this National Coming Out Day, a dozen years later, her words echo and her message remains.
Hers, though, is not the only message from those days that resonates if people -- including those in government -- look back and listen.
This is a prime opportunity to do something.
More than 10 hours of interview time covering interviews with the leaders of 15 LGBT organizations that have a national scope or impact. One magazine cover story intended to synthesize that and explain it.
Choices must be made.
I ended up with "State of Play," published today.
I want to take a minute to detail some of the choices that I made when pursuing this story and explain why I made them.
First, I limited the organizations with which I would be dealing. I wanted to tell a story and not just give a list, so I had to make some pretty stark choices. These included only addressing the largest organizations and those most prominent in the news during the 111th Congress. There are a multitude of organizations with a national scope or impact, however, so I had to limit it further to keep the project manageable. I chose, among the focused-issue organizations, only to address those covering the most prominent legislative topic of the year -- "Don't Ask, Don't Tell" repeal.
Second, I limited the people to whom I would speak. The genesis for this project -- as I detailed to the subject of each interview -- was to take a step back from the day-to-day scuffles and decisions to look at the movement more broadly. One way -- though certainly not the only way -- is to make the choice I made, which is to let the leaders of the organizations, either the head of its board or the person hired by the board to lead the organization, to speak about the group and the organization's view of the LGBT equality movement more generally.
Third, media is an entriely different story, and I did not include the Gay and Lesbian Alliance Against Defamation or National Lesbian and Gay Journalists Association for that reason. I did not want to have the LGBT organization discussion at the center of this piece also need to address the issue of the changes to media accountability that have come about because of the blogosphere and the role that non-LGBT organizations like Media Matters for America have played in combatting anti-LGBT media protrayals.
With those three primary limits in place, the selections for the people to whom I spoke were rather easily decided. The 15 organizations chosen and 15 interviews conducted focus the story to the political, legal and electoral aspects of LGBT equality efforts, with the only focused-issue organizations being Servicemembers Legal Defense Network and Servicemembers United.
This led to three elements that could cause some concern with the article:
In response, I would just say, "You're right."
This story, like all stories of the LGBT equality movement, is incomplete. This was and is an attempt to contribute to a better understanding of and openess about the LGBT organizations representing LGBT people and allies in Washington and across the nation.
I look forward to reading more pieces like Jeremy Hooper's thoughtfiul post at Good As You, more analysis like Jillian Weiss's post at The Bilerico Project and more comments like Christopher Edwards's note on Twitter about immigration as I continue to think about and write about this topic.
To that end, I will be continuing this "State of Play" feature in the coming weeks with a regular Metro Weekly news column devoted to discussing and expanding upon the issues I began exploring in today's article.
"I hope all the queers are thrilled to see him. I am sure there will be a couple legislative fruitloops there in the audience," the Journal reports was the message in an email sent from Brown's personal email account in response to an announcement about the event.
More from the Journal:
Brown said today he had no comment on the e-mail.
"I didn't send you one," Brown said.
When asked to confirm whether he wrote the e-mail, Brown said: "I'm not saying I did and I'm not saying I didn’t."
Brown represents a district that includes parts of Davidson and Forsyth counties, including parts of Winston-Salem and its neighboring town of Kernersville. It also happens to be the same area covered by the 5th Congressional District of North Carolina, better known to LGBT equality advocates as the seat of Rep. Virginia Foxx (R).
[UPDATE: Equality North Carolina responds -- with a Froot Loops plan:
Well, if it's fruitloops Rep. Brown wants, then that's what we'll give him! From now until Monday, October 11th, at 5pm, each donation you make to Equality NC in Rep. Brown's name will come with a box of Froot Loops cereal to be delivered to his office, complete with your personal message.
Heh. Click here to get to the site if you would like to help them out.
Thanks to Nat for the heads up!]
This week's Metro Weekly's cover story -- out Thursday [and up now here!] -- is a detailed look at many of the LGBT organizations that have a national scope or impact. Here's a preview:
Within the LGBT community during the past two years, several events – from the response to Proposition 8 in California to decisions about the legislative priorities in Congress and approaches to those priorities – have led to some high-profile disagreements among LGBT organizations.
Against this backdrop, Metro Weekly spoke with the leaders of 15 LGBT political, legal and electoral organizations whose work has a national impact. These conversations, all conducted during the week of Sept. 27, show unexpected agreements and similarities between organizations with significantly different missions. More fundamentally – and despite differences of opinion and of strategy – the interviews make clear that the relationships between LGBT organizations are not easily defined in terms of a “schism” or even a divide.
But it's true that for all the questions about the pursuit of LGBT equality, there are many voices, often leading many people in sometimes differing directions.
It could be – and has been – characterized as a mess.
Or it could be something else.
The story goes on to explore four areas of LGBT equality: "Don't Ask, Don't Tell" repeal efforts, legal efforts, efforts on the GOP side of the aisle and efforts at HRC. The feature also takes a look at the White House and on the Hill.
I'm looking forward to hearing everyone's thoughts -- though, I imagine I'd hear them whether I wanted to or not!
Photo: Attorney Sean Summers speaks to reporters outside the U.S. Supreme Court following oral arguments in Snyder v. Phelps on Wednesday. Al Snyder, the father of a soldier killed in Iraq, sued Fred Phelps for the distress caused when Phelps protested at his son's funeral. (Photo by Chris Geidner.)
The U.S. Supreme Court now must consider how to rule in Snyder v. Phelps, which was argued before the high court this morning.
As I wrote in the story about the arguments -- "'You're Going to Hell' -- But First, the Supreme Court" -- the case raises complex issues of First Amendment law:
The case, which centers around the religious group behind the godhatesfags.com website and who also protested outside of Matthew Shepard's funeral in 1998, presents the justices with a question about whether the First Amendment protection of, as Justice Sonia Sotomayor put it, public commentary about public figures -- which the court previously held is protected -- also applies to public commentary about private figures.
The case also, though, is about a son who died at war, and that impression was indelible throughout the day:
As Al Snyder left the court with Summers, he spoke briefly with Metro Weekly about the LGBT community's familiarity with Fred and Margie Phelps and the WBC's protests. He said he's thankful for the kindness shown to him by the LGBT community: "They've been great supporters."
On the way to their cars, Snyder, Summers and Kansas Attorney General Steve Six (D) were greeted on the grounds of the U.S. Capitol by U.S. Capitol Police Officer Keith Atkins.
Atkins, in a brief and informal ceremony, presented Snyder with a flag dedicated to the "countless sacrifices made by Lance Corporal [Matthew] Snyder ... a brave Marine and great American." Atkins added, as he presented the flag to Snyder, "I put 'Semper Fi' on there, because I know he would want that."
Here are some more photographs from today.
Photo: U.S. Capitol Police Officer Keith Atkins gives Al Snyder a flag flown over the U.S. House of Representatives earlier Wednesday in honor of Atkins's son, Matthew. (Photo by Chris Geidner.)
Photo: A member of the Phelps family protests outside the U.S. Supreme Court prior to the oral arguments in Snyder v. Phelps on Wednesday. (Photo by Chris Geidner.)
A big announcement today from the U.S. Department of State on the administration's efforts to fight global disease, including HIV/AIDS:
As part of America’s leadership in saving lives and alleviating suffering around the world, the United States announced today that it intends to make an unprecedented three-year pledge of support to the Global Fund to Fight AIDS, Tuberculosis and Malaria. The pledge is tied to the call for smart investments and shared responsibility to reach the goal of saving more lives efficiently and effectively.
The Obama Administration intends to seek $4 billion for the Fund for 2011 through 2013 to continue America’s strong support for this important multilateral partner. This pledge is a 38% increase in the U.S. investment over the preceding three-year period – a substantial increase especially in light of the overall budget challenges and the largest increase by far of any donor nation this year.
This historic pledge has three goals:
*To save more lives by driving needed reforms and ensuring smart, effective investments are being made: The Fund has demonstrated remarkable success over the past eight years in mobilizing and disbursing resources. We must build upon this success by driving needed reforms including better grants management; greater country-level collaboration to avoid duplication of efforts; closing gaps in services; reducing reporting burdens on host countries; better accountability for funds in grants to ensure proper use of scarce resources; and better monitoring and evaluation to ensure goals of grants are met. The U.S. calls upon the Global Fund Board to develop an action agenda in the near future that includes clear timelines and measures progress so all parties can be held accountable for clear action steps.
* To leverage other donor nations’ contributions in order to save more lives; increase life expectancies; and alleviate suffering: This commitment serves as a challenge to other donors. If other donors scale up their commitments at a similar rate, the Global Fund is expected to be able to proceed with new rounds of grants while continuing existing grants during 2011-2013.
* To continue to demonstrate U.S. leadership in the ultimate measurement of success – increasing the number of lives saved: The U.S. was the first and by far the largest contributor to the Fund, providing more than $5.1 billion to date. This pledge is part of a comprehensive approach to combating AIDS, TB, and malaria through President Obama’s Global Health Initiative (GHI), which supports coordinated interventions aimed at reducing lives lost from the three diseases and other health challenges.
With this U.S. commitment and scaled-up contributions from other donors, the Global Fund projects that it will be able to achieve the following results by 2015:
Following up, the office of Speaker Nancy Pelosi (D-Calif.) issued this response:
Washington, DC – Speaker Nancy Pelosi released the following statement today on the Obama Administration’s announced U.S. pledge to the Global Fund to Fight AIDS, Tuberculosis and Malaria. The announcement of a $4 billion commitment over the next three years was made by U.S. Global AIDS Coordinator Eric Goosby at the Global Fund pledging conference currently being held in New York:
“Since its creation in 2001, the Global Fund to Fight AIDS, Tuberculosis and Malaria has saved almost 5 million lives by supporting prevention, treatment, and care programs to combat these diseases. Projects in 144 countries are increasing access to antiretroviral therapy for people living with HIV, expanding treatment of TB and Malaria, distributing bed nets, supporting community-based prevention services, strengthening health systems and funding numerous other proven interventions. This progress not only improves lives, it also brings stability and economic growth to impoverished areas. These investments are working, and this progress must continue.
“As world leaders gather in New York to renew their pledges to the Fund, the U.S. must lead the way. President Obama, Secretary of State Hillary Clinton, and Ambassador Goosby are to be commended for their leadership in affirming a three-year commitment and increased resources to the Global Fund. I look forward to working with the Obama Administration and with my colleagues in Congress to ensure the strongest possible U.S. contribution to the Global Fund is appropriated every year.”
On Wednesday, the justices of the U.S. Supreme Court will be considering, as SCOTUSblog summarizes the matter, "Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?"
Although the case and oral arguments, which Metro Weekly will be covering, relate specifically to the funeral protest laws that several states passed because of the protests of soldiers' funerals by members of the Kansas-based Westboro Baptist Church, the Phelps family continues to lead their infamous protests against homosexuality, abortion and other assorted matters across the country.
Today -- following a week in which anti-LGBT bullying and related suicides were prominently featured in the media -- the Phelps family was leading one of its protests at Ohio State University in Columbus that took place outside my alma mater, OSU's Moritz College of Law.
Pete Olsen, a second-year law student at OSU, attended the protest, which -- like the National Organization for Marriage's summer marriage tour -- was dwarfed by the counter-protest. He writes at his Wide Rights blog:
This morning, from 10:00am to 10:30am, the Westboro Baptist Church was scheduled to protest at the Ohio State University student union building. From their infamous website godhatesfags.com, they gave this reason: “These college students spend more time pursuing their drunken sins than their academic studies. Their professors happily teach them the ubiquitous lie that “it’s OK to be gay” and its [sic] just fine to flip off God and mock His servants.”
I happily donned my purple Legalize Gay t-shirt to join an expected throng of counter protesters.
Check out the rest of Olsen's post for more. He also posted this video from the event that shows a sizable counter-protest by the Buckeyes:
Late Friday afternoon, a remarkably strong statement was put out by U.S. Secretary of Education Arne Duncan:
"This week, we sadly lost two young men who took their own lives for one unacceptable reason: they were being bullied and harassed because they were openly gay or believed to be gay. These unnecessary tragedies come on the heels of at least three other young people taking their own lives because the trauma of being bullied and harassed for their actual or perceived sexual orientation was too much to bear.
"This is a moment where every one of us - parents, teachers, students, elected officials, and all people of conscience - needs to stand up and speak out against intolerance in all its forms. Whether it's students harassing other students because of ethnicity, disability or religion; or an adult, public official harassing the President of the University of Michigan student body because he is gay, it is time we as a country said enough. No more. This must stop."
Duncan's decision to weigh in on the matter regarding Michigan Assistant Attorney General Andrew Shirvell is particularly notable.