SPRINGFIELD --- Civil unions would be allowed in Illinois beginning next year for same-sex couples under legislation the House passed today.
The 61-52 vote followed spirited debate on whether the action would be tantamount to legalizing gay marriage.
Sponsoring Rep. Greg Harris, D-Chicago, called on his colleagues to join the arc of history that has gradually eliminated discrimination on social issues ranging from allowing women the right to vote to knocking down numerous social and legal barriers standing in the way of giving rights to people of color.
“We have a chance today to make Illinois a more fair state, a more just state, and a state which treats all of its citizens equally under the law,” Harris said. "We have a chance here, as leaders have had in previous generations, to correct injustice and to move us down the path toward liberty."
The measure now goes to the Senate, where a similar bill passed in committee today.
The Tribune quoted Rick Garcia, the political director of Equality Illinois, as saying, "I think it was telling that as the bill was being discussed the governor [Pat Quinn (D)] came out onto the floor and got a standing ovation. We've taken a huge step toward fairness. We are thrilled."
Lamda Legal, meanwhile, issued a news release, with Jim Bennett, regional director of Lambda Legal's Midwest regional office in Chicago, saying, "We thank the Illinois House for passing this historic bill. We are one step closer to bringing much needed protections to same-sex couples and their families. We now urge the Senate to vote for civil unions in Illinois."
Human Rights Campaign president Joe Solmonese said in the organization's own statement, "HRC congratulates Illinois’ House of Representatives for recognizing that all couples and all families deserve basic rights and protections. Civil Unions are not marriage, but they provide important benefits and are step in the right direction."
In the statement, he references the legislation passed earlier this year in the House aimed at repealing DADT and "call[s] on the Senate to act as soon as possible so I can sign this repeal into law this year."
He also references the historical marker of Nov. 30, 1993, saying in the statement, "[F]or the first time since this law was enacted 17 years ago today, both the Secretary of Defense and the Chairman of the Joint Chiefs of Staff have publicly endorsed ending this policy."
[UPDATE: White House spokesman Shin Inouye tells Metro Weekly that the statement wasn't Obama's only action on DADT repeal today. In reference to Obama's meeting with congressional leadership from both parties earlier on Tuesday, Inouye wrote, "The repeal of DADT was discussed in the meeting, and it remains a top priority for the President and Democratic Congressional Leadership."
In a ten-minute address following the meeting, Obama listed several topics of discussion and several priorities, including the middle-class tax cuts, other tax issues, the New START treaty, the bipartisan deficit reduction commission's work, a continuing resolution or other budget measure and unemployment insurance.
Neither DADT repeal nor the National Defense Authorization Act to which it is attached, however, were mentioned in the president's comments.]
Here is the full Obama statement following the release of the Pentagon report:
As Commander in Chief, I have pledged to repeal the “don’t ask, don’t tell” law because it weakens our national security, diminishes our military readiness, and violates fundamental American principles of fairness and equality by preventing patriotic Americans who are gay from serving openly in our armed forces. At the same time, as Commander in Chief, I am committed to ensuring that we understand the implications of this transition, and maintain good order and discipline within our military ranks. That is why I directed the Department of Defense earlier this year to begin preparing for a transition to a new policy.
Today’s report confirms that a strong majority of our military men and women and their families—more than two thirds—are prepared to serve alongside Americans who are openly gay and lesbian. This report also confirms that, by every measure—from unit cohesion to recruitment and retention to family readiness—we can transition to a new policy in a responsible manner that ensures our military strength and national security. And for the first time since this law was enacted 17 years ago today, both the Secretary of Defense and the Chairman of the Joint Chiefs of Staff have publicly endorsed ending this policy.
With our nation at war and so many Americans serving on the front lines, our troops and their families deserve the certainty that can only come when an act of Congress ends this discriminatory policy once and for all. The House of Representatives has already passed the necessary legislation. Today I call on the Senate to act as soon as possible so I can sign this repeal into law this year and ensure that Americans who are willing to risk their lives for their country are treated fairly and equally. Our troops represent the virtues of selfless sacrifice and love of country that have enabled our freedoms. I am absolutely confident that they will adapt to this change and remain the best led, best trained, best equipped fighting force the world has ever known.
In a ceremony on the floor of the U.S. Senate this evening, Vice President Joseph Biden swore in Sen. Mark Kirk (R-Ill.), according to a report from the Chicago Tribune. Kirk replaced Sen. Roland Burris (D-Ill.) after defeating Alexi Giannoulias in November's election. Kirk will complete the final month of the term of then-Sen. Barack Obama and will begin a full term of office with the 112th Congress.
One of the first votes cast by the new junior senator from Illinois very well could be whether to proceed to debating the National Defense Authorization Act -- a vote the passage of which is a must-win for advocates of the repeal of the "Don't Ask, Don't Tell" policy. The NDAA, as passed in May by the Senate Armed Services Committee, contains language aimed at repealing DADT.
In May, the full House approved the DADT repeal language -- but Kirk, who had received the endorsement of the Human Rights Campaign in past elections, voted against the DADT repeal amendment. The next day, however, Kirk was one of nine Republicans to vote for the NDAA containing the DADT repeal language.
Although Kirk has made general comments about his view of the priorities for the lame-duck session of Congress during which repeal advocates hope to see the NDAA passed, he has not said whether he will support or oppose proceeding to debate on the NDAA in the lame-duck session or whether he will support DADT repeal specifically.
Log Cabin Republicans was optimistic about Kirk's swearing-in. Christian Berle, LCR deputy executive director, told Metro Weekly on Monday evening that LCR "has had a long and consistent working relationship with Senator Kirk during his tenure in the House on employment non-discrimination and many more issues, and we are excited to have him in the United States Senate."
Winnie Stachelberg, the senior vice president at the Center for American Progress and one of the people who the White House has turned to throughout the DADT repeal process over the past year, told Metro Weekly on Monday night that she is hopeful that, after the release of the Pentagon working group's report on Tuesday, Kirk will vote for repeal in the Senate.
"As a congressman, when I was at the Human Rights Campaign working with him and his office, we agreed on some things, and he was always a good person with a good staff," she said, adding that she felt the same way after working with his office on several other issues while at CAP.
"I have heard that, as a Naval reservist, he has a couple of things that he needs -- first, to read the report -- and, he's now on the committee, and will be able to ask [his questions of the military leadership]," she said. "The second thing I understand is that he wants this report not to be a political report, but a roadmap. My understanding is that people who have talked to him -- those are concerns."
Talking about his vote, then, Stachelberg said, "I understand that he'll have time to read the report and that it is, in fact, what's he's asking for: a roadmap. Losing Senator Burris as a known vote in favor [of repeal] is a challenge, but, as I understand now-Sen. Kirk's concerns, I feel we haven't lost a vote there."
Berle also was optimistic, writing, "Senator Kirk has long indicated his anticipation of the report to be released by the Comprehensive Working Group and desire to consult with Admiral Mullen and other members of the Joint Chiefs of Staff on the subject of open service."
Berle concluded, "Log Cabin Republicans is confident that with the exemplary work coming from the November 30th Report, Senator Kirk will join with a bipartisan majority in ending the failed and unconstitutional 'Don't Ask, Don't Tell' policy."
Of the larger picture, Stachelberg said, "I think it will be interesting to see not just the report and the survey -- but how Gates and Mullen -- Gates in particular -- respond. My sense is that the Pentagon is increasingly focused on repealing this thing -- now ... and that they're really on that program."
Likewise, earlier today, White House spokesman Robert Gibbs reiterated Obama's desire for a legislative solution at the press briefing, saying, "I think the President strongly believed that this was an issue that can and should be solved legislatively, encourage the Senate to act legislatively on the Defense Authorization bill and particularly on changing Don’t Ask, Don’t Tell. That’s our position now and I don’t believe the release of the report will do anything but strengthen that case."
[UPDATE: From GOProud board chairman Chris Barron:
"As the only gay group that endorsed Mark Kirk in his succesful run for the U.S. Senate, GOProud enjoys a very good relationship with his office. Senator Kirk has made it clear before that the findings of the Pentagon Working Group will be critical in his decision-making process; and all indications are that the findings of the Working Group are almost universally positive. Given that, we are hopeful that if Senator Reid offers a fair process for debate and consideration of the Defense Authorization bill we will be able to win the support of Republicans like Senator Kirk in repealing the Don't Ask, Don't Tell policy."
Servicemembers Legal Defense Network executive director Aubrey Sarvis told reporters Tuesday that he doesn't think Kirk's vote is "in the bank" yet.]
The U.S. Court of Appeals for the Ninth Circuit today announced the panel of judges who will be hearing next week's appeals, which includes the appeal of Perry v. Schwarzenegger, the challenge to California's Proposition 8 (discussed here earlier today). Those hearing the Dec. 6 Perry arguments will be Judges Stephen Reinhardt, a Carter appointee known for being one of the most unabashedly liberal of judges in the appellate courts; Michael Daly Hawkins, President Clinton's first nominee to the Ninth Circuit; and N. Randy Smith, a conservative Bush appointee who attended Brigham Young University for both undergraduate and law school education.
In a 2009 matter regarding health-insurance benefits sought by a federal public defender legally married in California to his same-sex spouse, Reinhardt found that the application of the Defense of Marriage Act to limit the provision of those benefits to Brad Levenson for his husband would be unconstitutional because "there is no rational basis for denying benefits to the same-sex spouses of FPD employees while granting them to opposite-sex spouses of FPD employees."
Reinhardt went on:
The denial of federal benefits to same-sex spouses cannot be justified simply by a distaste for or disapproval of same-sex marriage or a desire to deprive same-sex spouses of benefits available to other spouses in order to discourage them from exercising a legal right afforded them by a state.
While noting in his order that marriage is "a fundamental right," however, Reinhardt pointed out that the matter before him was not the question of "[w]hether a state may deny such status to same-sex couples" because the couple in question was legally married and only challenging the denial of federal benefits.
Smith is a Republican who previously served as the head of the Idaho Republican Party. His biography presented by the Bush administration upon his nomination did not state his religious affiliation but did note, "Judge Smith has served as a lay leader in his church, and he and his wife are involved in community and church activities." Several other articles suggest that Smith is a Mormon. Metro Weekly attempted to confirm this information with the Ninth Circuit but was unsuccessful in doing so on Monday.
Such information would serve as a counterpoint to earlier protestations by the National Organization for Marriage and others about the trial court judge in the case, U.S. District Court Judge Vaughn Walker, who the San Francisco Chronicle reported is gay.
The Family Research Council, after Walker's Aug. 4 ruling, mentioned in its Washington Update that Walker had been reported to be gay, then stated:
It turns out that the Judge behind Proposition 8's undoing was just biding his time until he could unleash his ultimate agenda: decimating marriages that have defined civilization since the beginning of time. Despite Walker 's own biases, which are woven into all 136 pages of the court's opinion, protecting marriage is not discriminatory. Nor is it, as he mocked, an "artifact" rooted in "unfounded stereotypes and prejudices." The right to marry is granted by the U.S. Constitution -- but not the right to redefine marriage.
The significant involvement of the the Mormon church in supporting Proposition 8 already has led some opponents of Proposition 8 to raise similar questions about Smith.
The final judge on the panel, Hawkins, was one of the three judges on the earlier three-judge panel that granted the stay of Walker's decision pending the appeal. (The other two included a Reagan appointee, Judge Edward Leavy, and another Clinton appointee, Judge Sidney Thomas, who was considered for Justice Stevens's Supreme Court seat.) He is a former Marine who served as the U.S. Attorney in Arizona during the Carter administration and took senior status earlier this year. When answering Howard Bashman's "20 Questions" at How Appealing, he wrote:
I think of myself as being entirely moderate in all things, but others might say otherwise. My judicial philosophy is really pretty simple: people involved in the legal process should be treated fairly and judges should decide cases on the merits.
As such, it is likely that the questions to come before the panel could quite likely come down to the way that this self-defined "moderate in all things" judge views them.
Among the questions that will need to be answered by the judges are whether the Proposition 8 proponents have standing to bring the appeal; whether Imperial County should have been allowed to intervene in the case and now have standing to appeal the Aug. 4 ruling; whether, if a party does have standing to bring the appeal, Walker was right that Proposition 8 violates the constitutional guarantees of equal protection and due process; and whether, if no party has standing to bring the appeal, there even was standing at the district court level for Walker to have heard the case.
With Reinhardt likely to be looking for a way to affirm the ruling and Smith likely to be looking for a way to overturn it, the complexity of the standing questions could give Hawkins significant sway over the specific outcome that the court might reach to dispose of the case.
Once the three-judge panel hears the case and later rules, any party dissatisfied with the ruling could seek en banc review, which would require all the active Ninth Circuit judges to vote whether en banc consideration will be given. If a majority supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal. Further review by the Ninth Circuit or a request to the Supreme Court to hear the case could follow.
[Photo: Kamala Harris, California attorney general-elect, talks with a voter. (Photo from Harris campaign website.)]
San Francisco District Attorney Kamala Harris (D) will be the next Attorney General of California in one of the last outstanding statewide races in the country. With her win, California's governor and attorney general come January will continue the current governor and attorney general's position of not defending Proposition 8 in court and not appealing the August ruling finding the amendment to be unconstitutional.
In the close race -- which started with an Election Night victory statement from Harris's opponent, Los Angeles County District Attorney Steve Cooley -- Cooley offered a not-quite-gracious concession today, Nov. 24. In a statement posted on his website, he said:
"While the margin is extremely narrow and ballots are still being counted, my campaign believes that we cannot make up the current gap in the vote count for Attorney General. Therefore, I am formally conceding the race and congratulate Ms. Harris on becoming California’s next Attorney General."
Harris leads by more than 50,000 votes, with about 150,000 votes outstanding, according to the Los Angeles Times. The LA Times earlier covered how the two contenders made clear their positions on Proposition 8 in their debate about a month before the election. From the LA Times:
In Tuesday's debate with Kamala Harris, Cooley said, "Proposition 8 was passed by a majority of the California electorate ... Therefore, it should be defended by the California attorney general whether the attorney general believes in it or not."
Harris's stand: "Now that Propositon 8 has been found to be unconstitutional by a federal district court judge, we should not use the precious resources of the state of California" on an appeal.
On the day of U.S. District Court Judge Vaughn Walker's ruling in Perry v. Schwarzenegger in August, Harris said in a statement:
"From the moment Attorney General Jerry Brown issued his analysis that Prop 8 violates the equal protection clause of the United States Constitution, I have proudly concurred with him. That position has been confirmed by Federal Judge Walker's opinion today and stands in a proud line of jurisprudence reflected so boldly in 1948 when California's Supreme Court ruled that a ban on interracial marriage violated the 14th Amendment of the U.S. Constitution, a conclusion finally reached in 1967 by the United States Supreme Court in Loving v. Virginia.
"Attorney General Brown, Judge Walker, and I have all sworn to defend and uphold the Constitution of the United States. So, if I am given the privilege to serve as California's next Attorney General, I will not defend the anti-gay Proposition 8 in Federal court. Unfortunately, the same cannot be said for my opponent in the California Attorney General's race, who promises to put the full weight of the state of California behind a defense of this discriminatory amendment."
The news comes less than two weeks before the Ninth Circuit is scheduled, on Dec. 6, to hear more than two hours of oral arguments in the Proposition 8 proponents' appeal of Walker's decision. The hearing will be televised.
In addition to her position in support of marriage equality and in opposition to Proposition 8, Harris is an opponent of the death penalty. Her victory, though delayed, is sure to be viewed as of the key progressive victories in the 2010 elections.
The Senate Armed Services Committee, as had been suggested in recent days, announced that it would be holding hearings in the follow-up to the Nov. 30 scheduled release of the Pentagon working group's report into implementation of "Don't Ask, Don't Tell" repeal.
From the SASC website, the purpose of the hearings are "To receive testimony on the report of the Department of Defense Working Group that conducted a comprehensive review of the issues associated with a repeal of section 654 of title 10, United States Code, 'Policy Concerning Homosexuality in the Armed Forces.'"
On the first day, testimony will be heard from Defense Secretary Robert Gates; Adm. Mike Mullen, chairman of the Joint Chiefs of Staff; and the co-chairs of the working group, Defense Department general counsel Jeh Johnson and Gen. Carter Ham.
On the second day, the vice chairman of the Joint Chiefs of Staff, James Cartwright, is slated to testify, as well as theservice chiefs: Gen. George W. Casey, Jr., chief of staff of the Army; Adm. Gary Roughead, chief of naval operations; Gen. James F. Amos, commandant of the Marine Corps; and Gen. Norton A. Schwartz, chief of staff of the Air Force.
The hearings, along with the Pentagon report itself, are among the ways that repeal supporters -- in Congress and from advocacy groups -- believe that they can increase the chances of getting the votes necessary to secure passage of the Naitonal Defense Authorization Act, with DADT repeal language, during the lame-duck session of the 111th Congress.
In a brief filing in the U.S. District Court for the Western District of Washington, the U.S. Department of Justice filed the formal documents to announce that it plans to appeal the trial judge's order in Witt v. U.S. Department of the Air Force.
On Sept. 24, U.S. District Court Ronald Leighton ruled that the Air Force's discharge of Major Margaret Witt under DADT violated her constitutional rights. He wrote:
[T]he Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest ... it cannot be necessary to further that interest .... Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.
In October, the Department of Justice also opposed Witt's request for costs, in part, because "Defendants' time for noticing an appeal of the Court’s September 24, 2010 decision does not expire until November 23, 2010, and, accordingly, this matter has not been finally resolved in plaintiff's favor."
With today's filing, DOJ stated in a docketing statement required to be filed with the Notice of Appeal that the principal issue to be raised on appeal is:
Whether plaintiff's discharge pursuant to 10 U.S.C 654 and its implementing regulations was constitutional and whether plaintiff should have been ordered reinstated to the military, subject to meeting applicable requirements respecting qualifications for continued service.
In a statement issued by the White House moments after the filing, Press Secretary Robert Gibbs said:
"Today, the Department of Justice filed a notice of appeal in a case involving a legal challenge to the Don’t Ask, Don’t Tell (DADT) policy, as the Department traditionally does when acts of Congress have been held unconstitutional. This filing in no way diminishes the President’s -- and his Administration’s -- firm commitment to achieving a legislative repeal of DADT this year. Indeed, it clearly shows why Congress must act to end this misguided policy. In recent weeks, the President and other Administration officials have been working with the Senate to move forward with the passage of the National Defense Authorization Act, including a repeal of DADT, during the lame duck."
[UPDATE @ 7:10 PM: As Wonk Room's Igor Volsky points out, DOJ did not today seek -- and had not previously sought -- a stay of the ruling. The circumstances of this case, where only Witt is impacted, are very different from the circumstances in the Log Cabin Republicans v. United States case, where U.S. District Court Judge Virginia Phillips placed a worldwide injunction on enforcement of DADT. As such, DOJ might have just determined a stay was not necessary.
Additionally, the circumstance of Witt's case and judgment in the case -- which stated that "[s]he should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service" -- does not make it appear likely that Witt would be returning to her position immediately. From Leighton's Sept. 24 ruling:
The government argues that the Air Force cannot "assign to the Reserve . . . a nurse who does not actively practice nursing." Air Force Instruction (AFI) 36-2115, ¶ 1.11.5. The regulation quantifies what it means to be actively practicing nursing by prescribing a minimum of 180 hours active engagement in nursing per calendar year. Plaintiff concedes that she does not currently meet that experience requirement. If she chooses to resume her duties within the 446th AES, she must meet the proficiency requirements to the same extent and in the same manner that other flight nurses in the 446th have met those same requirements.
Accordingly, it is entirely possible that the government did not seek a stay in this case because, practically, it is not necessary.]
[FURTHER UPDATE @ 7:45 PM: Or, perhaps it is just a determination by DOJ that seeking a stay for Witt alone is not necessary or wise. Sarah Dunne, one of Witt's attorneys with the ACLU of Washington, writes:
"As far as we're concerned, while we are disappointed with DOJ's decision to appeal the ruling, we are thrilled that Major Witt will be returning to her unit and we are in the process of arranging this with the government."
As for more details about whether Witt now meets the "experience requirement," Dunne said only that there will be a press conference next Tuesday at the ACLU of Washington. Dunne tells Metro Weekly that Witt will be participating in the news conference and that they will explain "what is required and how she has met the requirements."]
After the U.S. Senate failed to garner the votes needed to overcome a filibuster to proceed to debate on the National Defense Authorization Act on Sept. 21, Sen. John McCain (R-Ariz.) -- who led the effort -- appeared to take a certain amount of pleasure in the blow to the "Don't Ask, Don't Tell" repeal effort.
At a meeting with reporters that followed the vote, McCain said, "I think the opinion of our service chiefs, all four, who stated in very strong terms that they wanted this survey completed before moving forward legislatively, was an important factor in keeping Republicans together."
With a chuckle, he added, "And since we got two Democrats' votes, both senators from Arkansas, we will now call it a bipartisan victory."
A week later, however, McCain took further action -- reported by Igor Volsky at the Wonk Room today -- to continue in his post-vote victory lap celebration and to try and stop any further movement for DADT repeal.
In a letter sent to Defense Secretary Robert Gates on Sept. 28, McCain wrote, "Recent events regarding the Senate's consideration of the [NDAA] and the unlikelihood that this legislation will be taken up until the 112th Congress, provides an opportunity for the Department to reconsider the manner in which it is studying the advisability of changing the [DADT] policy."
He went on to tell Gates, "I urge you and Admiral Mullen to modify the review and the survey instrument, or to conduct supplemental surveys, aimed at ensuring that the question of whether the DADT policy should be changed is answered."
On Oct. 25, Gates let McCain know -- in no uncertain terms -- what he thought of McCain's victory lap and his preemptive assault on the Pentagon working group's report.
Gates wrote, "I wholeheartedly agree with you about the critical importance of obtaining the views, concerns, and perspectives of those who will be most affected by a change in the DADT policy: our men and women in uniform. That is precisely why I directed that systematic engagement of the force and families be a centerpiece of the Department's comprehensive review."
McCain's next point -- about the Pentagon asking servicemembers "whether the DADT policy should be changed" -- drew the sharpest rebuke Gates has given regarding questions about the review of the policy.
He responded, "It is not part of the working group's mandate to ask Servicemembers the broad question of whether they think DADT should be repeal, which, in effect, would amount to a referendum. I do not believe that military policy decisions — on this or any other subject — should be made through a referendum of Servicemembers."
Writing that the working group "has undertaken what may well be the most comprehensive study of a personnel issue in the history of the U.S. military," Gates went on to detail the servicemember and spouse surveys and responses, the vistis to "over 50 military installations" and the website responses. He told McCain, "The Chairman and I personally reviewed the survey questions, as did the Service Chiefs."
He ended, "The Chairman and I fully support the approach and efforts of the working group, as do the Service Chiefs."
* * *
Before the release of the letters, Gates already had announced that the long-awaited working group report on the implementation of DADT repeal will be released to Congress and the public on Tuesday, Nov. 30 – one day earlier than it had been expected.
The move was one of several from civilian and uniformed military officials in the first week of the lame-duck session of the 111th Congress that appeared to give momentum to advocates' efforts to see the repeal this year of the 1993 law dictating military policy -- and appear to take on added significance in light of the McCain-Gates letter exchange reported today.
Pentagon spokesman Geoff Morrell, according to an American Forces Press Service report, said, "Secretary Gates is pushing all involved in the Comprehensive Review Working Group’s report to have it ready for public release on Nov. 30 in order to accommodate the desire of the Senate Armed Services Committee to hold hearings as soon as possible."
In addition to Gates's announcement, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, made the case for repeal in a series of Sunday news show appearances. In part, his argument was a refutation of McCain's preemptive criticism of the working group's upcoming report -- both in the letter to Gates and, after having received the response from Gates, to David Gregory on NBC's Meet the Press on Nov. 14.
Of McCain's concern that the working group focused on the wrong issues, Mullen said on CNN's State of the Union on Nov. 21, "Key is the leadership that it’s going to take to implement it when the law changes, specifically, and to understand as clearly as we could, the issues that surface from those it would affect the most, our men and women and their families."
Later on Nov. 21, reiterating a point made by Gates and several members of Congress in recent weeks, Mullen told Christiane Amanpour on ABC's This Week that "it's very hard to predict what’s going to happen ... from a legislative perspective.
"The other piece that is out there that is very real is the courts are very active on this, and my concern is that at some point in time the courts could change this law and in that not give us the right amount of time to implement it," Mullen told her. "I think it's much better done if it's going to get done, it's much better done through legislature than it is out of the courts."
The views advanced by Gates and Mullen was not altogether surprising – though helpful for repeal advocates – because both men have been publicly in support of the repeal since their February testimony before the Senate Armed Services Committee. More surprising was the indirect pushback that McCain got in a National Journalinterview with Adm. Gary Roughead, the chief of naval operations.
In the Nov. 21 article, Roughead said, "I think the survey, without question, was the most expansive survey of the American military that’s ever been undertaken. I think the work that has been done is extraordinary."
Finally, Air Force Chief of Staff Norton Schwartz told reporters this morning that the working group review was a "good and healthy" process, although he refused to give his view of the report.
Although the new Marine Corps Commandant, James Amos, has expressed his view opposing DADT repeal, he is the only service chief to take that position in the course of discussions about the lame-duck Senate consideration of repeal -- a significant change from when all four service chiefs wrote letters with varying levels of opposition to congressional action in May.
Once again proving that Fox News has a love/hate (perhaps more hate/hate) relationship with the LGBT community, the right-wing network has rejected an advertisement from the Palm Center featuring openly gay troops discussing “Don’t Ask, Don’t Tell” (DADT), according to a press release obtained by Media Matters.
Palm Center's communications consultant Cathy Renna told Media Matters that Fox News' ad department wrote in an email explaining their rejection of the ad, "Don't Ask, Don't Tell is still on hold, so claiming the military is planning repeal is incorrect."
Palm Center Director Aaron Belkin said in a news release about the Fox News decision, "I am surprised that Fox News would reject an ad featuring allied Generals, given that both host Bill O'Reilly and guest contributor Liz Cheney have expressed support for open gay service. This is an important time for input from all sides on this issue, and I hope Fox will reconsider."
According to Palm, the ad includes video clips made in May 2010 featuring Major General Walter Semianiw, chief of military personnel in the Canadian Forces, and Major General Simon Willis (retired), former head of defence personnel in the Australian Defence Force. Major General Semianiw has since been promoted to Lieutenant General and leads Canada Command.
[Photo: Attorney Ted Olson speaks to Chad Griffin (right) and Kristina Schake before the start of the Perry v. Schwarzenegger trial challenging the constitutionality of California's Proposition 8. (Photo by Diane Walker for AFER.)]
One of the co-founding board members of the organization bringing the historic challenge to California's Proposition 8, Kristina Schake, is resigning from the American Foundation for Equal Rights board at the end of the month to start a new job at the White House on Dec. 6 -- the same day that the U.S. Court of Appeals for the Ninth Circuit is to hear the appeal in Perry v. Schwarzenegger.
In a news release this morning, the White House announced that Kristina Schake is leaving California's Griffin-Schake public relations firm to come on as a special assistant to the president and communications director to First Lady Michelle Obama. Schake previously served as the senior communications strategist to California First Lady Maria Shriver.
Chad Griffin, the AFER board president, said in a statement on Schake's new position, "She's one of the most intelligent and valuable resources the equality movement has ever seen."
The White House statement mentioned the work Schake and her firm have done to "help change California's political landscape on ... civil rights," although AFER and the challenge to Proposition 8 were not specifically mentioned. It also stated that Schake "is a seasoned expert in helping major foundations, non-profit organizations and civic leaders bring about critical social change through policy, legislative, social marketing and media initiatives."
In the White House statement, First Lady Michelle Obama touted Schake's "extensive work throughout her career on child nutrition and community health issues," as well as "her experience as part of a military family."
"I'm thrilled to welcome Kristina to the team. Kristina brings a wealth of expertise that I know will make her a tremendous asset in the East Wing," Michelle Obama said. "I look forward to working with Kristina on these efforts and more in the months and years ahead."
AFER's statement noted that Schake would be resigning from the AFER board effective Nov. 30, and Griffin praised her contributions to the effort.
"Kristina was instrumental in the conception of the American Foundation for Equal Rights and she's played a key role in every strategic success we've had as an organization," he said in the statement. "We're sad to see her go but, are extremely proud of where she's headed."
[UPDATE @ 10:40 PM: In response to a request for comment about Schake's work challenging the constitutionality of Proposition 8, White House spokesman Shin Inouye wrote to Metro Weekly on Monday afternoon, "The White House is pleased to have Ms. Schake join our staff. She was hired as she was the most qualified person for the position."]
On Wednesday evening, Nov. 17, some were questioning Greg Sargent's report that there could be 60 votes in the U.S. Senate to overcome a filibuster of the National Defense Authorization Act if it contains the amendment aimed at repealing "Don't Ask, Don't Tell."
On Thursday, surrounded by Democratic pro-repeal senators, one-time Democratic vice-presidential candidate Sen. Joseph Lieberman (I-Conn.), said he was "confident" that there were "more than 60 votes prepared to take up the defense authorization with the repeal" -- with the caveat that the votes were there "if only there will be a guarantee of a fair and open amendment process."
As The Advocate's Kerry Eleveld went on to detail, Lieberman and the dozen Democratic members "seemed intent on urging the Democratic leadership to allow enough room in the Senate schedule for a debate that would be acceptable to Republicans."
It was only hours later, on Thursday evening, that reports began circulating that Sen. Lisa Murkowski (R-Alaska) had told a local news station -- in the reporters' words -- that Murkowski "would not vote against a bill that had that repeal in it." Although her spokesman later added some nuance and conditions to that characterization, the conditions -- reported (with some questions) by Igor Volsky at the Wonk Room -- sound like a description of the repeal amendment's conditions and the leaks from the Pentagon working group's report.
Then, a group including Equality Nevada and Stonewall Democrats of Nevada released information that they had been told by Sen. John Ensign (R-Nev.)'s regional representative Margot Allen that "Senator John Ensign does not support the Don't Ask, Don't Tell policy and will vote to repeal it." [UPDATE: Sargent reports that Ensign's office followed up with a clarification similar to Murkowski's that states support for repeal if certain conditions that are likely to occur are met.]
In addition, officials with the offices of Sens. Susan Collins (R-Maine) -- who voted for repeal in the Senate Armed Services Committee in May -- and Richard Lugar (R-Ind.) told Sargent that they, under the right procedural circumstances, would support a lame-duck NDAA/DADT repeal vote.
That done, the 56 Democratic senators who are on the record supporting repealmoving the NDAA forward for a vote even if DADT repeal is included* (more on that in a second) -- having lost Democratic Sens. Blanche Lincoln and Mark Pryor of Arkansas in the September vote -- would have four Republican votes if the four above stay on board, giving them the 60 votes necessary to overcome a filibuster. (But, only 60 -- and one of those Democrats (again, more in a second) is going to be replaced soon by a Republican who's already voted against repeal once this year.)
These four Republican senators -- with their public statements this week -- are, thus, sending a strong message to Sen. John McCain (R-Ariz.) -- and to Minority Leader Mitch McConnell (R-Ky.) -- that the unquestionable party loyalty seen at the height of election season might not apply in the lame-duck session.
But, they also might signal how Lieberman could be getting to "more than 60 votes" for repeal.
Sens. Scott Brown (R-Mass.), Olympia Snowe (R-Maine) and George Voinovich (R-Ohio) are Republicans whose votes were targeted in September. In addition, Sen. Joe Manchin (D-W.V.) is a new senator whose DADT repeal vote is uncertain -- and he has replaced a senator, Sen. Carte Goodwin (D-W.V.), who voted for moving forward with NDAA debate in September. (Sen. Roland Burris (D-Ill.) is to be replaced by Rep. Mark Kirk (R-Ill.) when he is sworn in on Nov. 29, according to NBC Chicago. That would create a similar situation to that in West Virginia and pull the current count back down to 59.)
What do these senators all have in common?
They all -- including Murkowski and Ensign -- represent a state where the other senator has announced support for repeal. Sens. Mark Begich (D-Alaska), Harry Reid (D-Nev.), John Kerry (D-Mass.), Collins, Sherrod Brown (D-Ohio), John Rockefeller (D-W.V.) and -- when applicable -- Richard Durbin (D-Ill.) support repeal.
Why is this relevant?
With the partisan election pressures gone, the senators in question are in a good position to vote for repeal. If they want to vote for repeal -- obviously, a big "if" -- they have what amounts to a very strong backstop among their general election electorate (although, obviously, not an absolute "free pass" because of the possibility of Republican primary challenges).
If these senators want to vote for repeal, they can point to public opinion polling, the leaked (and eventually announced) results of the troop survey and their fellow home-state senator to say, simply, that this issue has reached the elusive tipping point and that they are voting for the NDAA with DADT repeal to support the troops and to be on the right side of history. Or they needn't even say it -- but it remains the reality, and a strong reason why these senators could vote for repeal without likely encountering much opposition at home.
With that "tipping point," Lieberman could get to his vote count comfortably -- and "more than 60" senators would vote to repeal the military's "Don't Ask, Don't Tell" policy in this lame-duck session of the 111th Congress.
* * *
* = This change is necessary to reflect, specifically, the fact that Sen. Jim Webb (D-Va.) voted against the inclusion of DADT repeal in the Senate Armed Services Committee but voted for the NDAA once DADT repeal was added into the bill in both the committee and in the September floor vote. It is possible that other Democratic senators not on SASC hold a similar position.
In a call with reporters on Wednesday, Health and Human Services Department officials discussed the final rules submitted today regarding hospital visitation policies for hospitals that receive Medicare or Medicaid funding.
Hospitals participating in either program are required under the rules to allow a patient "to receive the visitors whom he or she designates -- regardless of sexual orientation or gender identity." A Centers for Medicare & Medicaid Services (CMS) official told reporters, "I think it would be the rare hospital that did not participate in the Medicare program."
If a hospital fails to meet its obligations under the new rules, an HHS official said, "Hospitals must provide a plan of correction -- with a very tight timeframe. If they fail to do so, they are at some risk to have their Medicare" eligibility cut.
Among the rules are:
(1) Inform each patient (or support person, where appropriate) of his or her visitation rights, including any clinical restriction or limitation on such rights, when he or she is informed of his or her other rights under this section.
(2) Inform each patient (or support person, where appropriate) of the right, subject to his or her consent, to receive the visitors whom he or she designates, including, but not limited to, a spouse, a domestic partner (including a same-sex domestic partner), another family member, or a friend, and his or her right to withdraw or deny such consent at any time.
(3) Not restrict, limit, or otherwise deny visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.
Among the comments received and responses offered was one that related to issues with an incapacitated patient:
Comment: Several commenters stated that written documentation of patient representation in the form of legally valid advance directives, such as durable powers of attorney and healthcare proxies, (as opposed to oral designation of the support person by the patient) should be required only in the very rarest of cases – such as when more than one person claims to be a patient’s spouse, domestic partner, or surrogate. In all other cases, oral confirmation of an individual acting as the support person should suffice. Commenters suggested that a hospital or CAH may not require documentation in a discriminatory manner.
Response: In the preamble, we specifically asked for comments on how to best identify those rare cases where hospitals and CAHs should be permitted to ask for written documentation to establish the support person as such in order to allow the support person the right to designate visitors if the patient is unable to do so. We appreciate the comments offered on this issue. We agree that this practice would most clearly be justified in those rare cases where the hospital or CAH faces a dispute among two or more persons claiming to be the patient’s support person, and the patient is incapacitated.
The change will take effect 60 days after publication.
This afternoon, White House spokesman Shin Inouye told Metro Weekly that President Obama had spoken with one of the Senate leaders of "Don't Ask, Don't Tell" repeal -- Sen. Carl Levin (D-Mich.) -- about the provision's inclusion in the National Defense Authorization Act.
[He later added that the president "conveyed" his view of the "importance" of repeal of DADT during the lame-duck session of Congress to Senate Majority Leader Harry Reid (D-Nev.), who -- Reid's senior staff told officials at several LGBT organizations -- is "committed to moving forward on repeal" by holding a vote on the NDAA in the lame-duck session.]
White House press secretary Robert Gibbs had, earlier in the day, toldThe Advocate's Kerry Eleveld at the press briefing that passage of the NDAA, with DADT repeal, in the lame-duck session of Congress is "in the same category" as passage of the START nuclear treaty and the extension of the middle-class tax cuts.
Inouye wrote, "Today, President Obama called Chairman Levin to reiterate his commitment on keeping the repeal of 'Don't Ask, Don't Tell' in the National Defense Authorization Act, and the need for the Senate to pass this legislation during the lame duck."
He added, "The President's call follows the outreach over the past week by the White House to dozens of Senators from both sides of the aisle on this issue."
Gibbs had noted at the briefing that Obama had not yet spoken to Sens. Joseph Lieberman (I-Conn.) or Susan Collins (R-Maine) -- two key votes for lame-duck repeal.
[UPDATE: The Washington Post's Greg Sargent reports, "Good news: Don't Ask Don't Tell repeal is not dead yet," repeating a line that others have been trying to say for the past week.
He adds, however:
[V]ery plugged in staffers who are actively involved in counting votes for Senators who favor repeal tell me it's premature to conclude this -- and that it could still get 60 votes in the Senate. These staffers tell me they've received private indications from a handful of moderate GOP Senators that they could vote for cloture on a Defense Authorization Bill with DADT repeal in it -- if Dem leaders agree to hold a sustained debate on the bill on the Senate floor.
Then, he discusses a pro-repeal news conference that has been in the works:
Sources also tell me that senators Joe Lieberman [(I-Conn.)], Mark Udall [(D-Colo.)] and Kirsten Gillibrand [(D-N.Y.)] will hold a press conference tomorrow urging the Dem leadership to allow the final two-week debate, arguing that this still can happen. This is no small thing: They are urging their own party leadership to do this.
Now, however, it appears that more Democrats are comfortable telling their leadership that the NDAA needs to pass and that it needs to include DADT repeal. From a release from Gillibrand's office, the following senators have signed on to attend Thursday's news conference, in addition to Lieberman, Udall and Gillibrand: Sens. Roland Burris (D-Ill.), Barbara Boxer (D-Calif.), Ron Wyden (D-Ore.), Patrick Leahy (D-Vt.), Dianne Feinstein (D-Calif.) and Al Franken (D-Minn.). Karen Ocamb at LGBT POV also has reported that Lieberman's office confirmed participation of Sens. Amy Klobuchar (D-Minn.) and Benjamin Cardin (D-Md.), as well as noting they expect more senators to sign on before the news conference.]
[FURTHER UPDATE: This evening, Inouye added further information to thie mix, writing:
Today, Jim Messina, Phil Schiliro, Chris Kang and Brian Bond from the White House, along with stakeholders, met with senior staff from Majority Leader Reid’s office to discuss the importance of moving forward with the passage of the National Defense Authorization Act and the repeal of 'Don't Ask, Don't Tell' during the lame duck. The President has also previously conveyed this message directly to Senator Reid.
The Human Rights Campaign later added that both Obama and Reid "are committed to moving forward on repeal" by holding a vote on the NDAA in the lame-duck session.
The full HRC statement:
Key Senate leadership and Administration officials this evening met with representatives of the Human Rights Campaign (HRC), Servicemembers Legal Defense Network (SLDN), and the Center for American Progress Action Fund (CAPAF). The officials told the groups that Majority Leader Harry Reid and President Obama are committed to moving forward on repeal by bringing the National Defense Authorization Act – the bill to which “Don’t Ask, Don’t Tell” repeal is attached – to the floor in the lame duck session after the Thanksgiving recess. Further the Majority Leader and the President made clear their opposition to removing the DADT provision from the NDAA. Information on the exact timing and procedural conditions will be announced by the Majority Leader’s office.
Present at the meeting with representatives from HRC, SLDN and CAPAF were: Jim Messina, Deputy White House Chief of Staff; Phil Schiliro, White House Director of Legislative Affairs; Chris Kang, Special Assistant to the President for Legislative Affairs; Brian Bond, Deputy Director of the White House Office of Public Engagement; David Krone, Chief of Staff to Majority Leader Reid; and Serena Hoy, Senior Counsel to Majority Leader Reid.
And so ends the third day of the lame-duck session.]
[Photo: President Obama at a September 2010 news conference. (Photo by Chris Geidner.)]
Get Equal's Robin McGehee told me in March, "Our goal is not to be the person who gets to be in those negotiations."
She added, "It's to be able to get Joe [Solmonese of the Human Rights Campaign] and Rea [Carey of the National Gay and Lesbian Task Force] and Mara [Keisling of the National Center for Transgender Equality] into those meetings where they can … use the political capital they've gotten to pressure'' leaders like President Obama and others.
Today, however, things have changed.
McGehee has accepted a White House invitation to meet with White House deputy director of public engagement Brian Bond. But her response, she implies, will be different than Carey, HRC vice president David Smith and Center for American Progress senior vice president Winnie Stachelberg -- who were met with Get Equal protests on Tuesday night for meeting with White House deputy chief of staff James Messina.
Only two short days after being arrested for chaining myself to the White House fence and asking my President why he hasn’t fulfilled his promise of equality, I’ll pass through the same gate and by those familiar guard shacks today to meet with Brian Bond, Deputy Director of the Office of Public Engagement. I accepted Mr. Bond’s request for a meeting, but let me be clear – I don’t, for a second, plan on backing down. Not for a second will I be talked out of fighting for my community’s equality because of political pressure or the fear of not being invited back. Instead, I plan on following in the footsteps of Rep. Luis Gutierrez, an elected leader who showed the courage to fight for what he believed in by being arrested because of the lack of leadership other elected leaders are showing on immigration reform. As Rep. Guiterrez did yesterday, I too will honor the meeting they requested with me, but I won’t honor any closed-door attempts to quiet a community starving for their dignity and their equality.
Implicit in her statement is the idea that HRC, the Task Force, CAP and any other LGBT organization that has met with the White House has been "talked out of fighting for [their] community's equality because of political pressure or the fear of not being invited back."
Implicit in her statement is the idea that those people -- who include Servicemembers Legal Defense Network executive director Aubrey Sarvis, Servicemembers United executive director Alex Nicholson and Unfriendly Fire author Nathaniel Frank -- did not "show the courage to fight for what [they] believed in."
McGehee told me in September of Get Equal, "We're pushing and challenging the traditional organizations that have been branded to represent us to do it better and to do it differently."
Now's her time to show those organizations -- and the rest of the LGBT community -- what she means.
[Drawing of Robin McGehee by Scott G. Brooks for Metro Weekly.]
[Photo: James Pietrangelo II sent his message to the White House from across Pennsylvania Avenue on Monday. (Photo by Yusef Najafi.)]
When Lt. Dan Choi handcuffed himself -- as Metro Weeklyreported earlier today -- to the White House for a third time this year, James Pietrangelo II, Choi's fence partner the two previous times, stood apart from him and moved to Lafayette Park across Pennsylvania Avenue. The video above shows the scene as the onlookers were told to move away from the handcuffed activists. Prompting chants from the crowd and a call-and-response from the 13 activists handcuffed to the fence, Pietrangelo helped keep the crowd and media busy after the police forces present pushed onlookers into Lafayette Park.
Although not up on the fence, Pietrangelo was still participating with today's protest -- with a Get Equal logo emblazoned on his bullhorn.
[PHOTO, ABOVE: Pietrangelo stands across Pennsylvania Avenue from the White House fence, where he previously had joined Lt. Dan Choi and others in being arrested in protest of the "Don't Ask, Don't Tell" policy. (Photo by Chris Geidner.)]
PHOTO, BELOW: Thirteen people, including Get Equal co-founder and director Robin McGehee (far right), handcuffed themselves to the White House fence on Monday and were later arrested. (Photo by Yusef Najafi.)]
On Nov. 11, Metro Weeklyreported that Parents and Friends of Ex-Gays and Gays (PFOX) had been listed as an eligible organization in the World Bank's 2010-2011 Community Connections Campaign, which would give it matching funds provided by the bank for any employee donations given to PFOX through the drive.
Today, however, the World Bank told employees of a change in the policy that will keep PFOX from getting any more matching funds during this year's campaign.
After Metro Weekly's report, Truth Wins Out and Change.org started a petition campaign, concluding, "I urge The World Bank to cease funding or matching gifts for hateful groups like Parents and Friends of Ex-gays."
TBD's Amanda Hess followed up today, talking to one LGBT World Bank staffer, who said, "If a charitable association supporting female genital mutilation, a pro-life organization or an association claiming it can turn black people white had wiggled its way in the CCC, The Bank's management would have removed it immediately and issued an apology."
Now, the World Bank has responded, with an email sent out to folks involved in the Community Connections Campaign. From the email, sent to Metro Weekly:
Dear CCC Campaign Coordinators and Volunteers:
I want to share with you information that Bank Management has made a decision regarding this year's Campaign and the provision of matching funds.
* * *
For this year's Community Connections Campaign, Bank-matching funds will be provided to those organizations that have, through prior participation, established a track record of support with staff. Organizations that have come on the list this year will not be offered matching funds in this year's campaign, though the Bank will match any contribution that has been made to this latter group prior to today, November 15, 2010. We will review the new organizations after one year, to see if they have the staff and community support to warrant a match in the FY12 campaign.
That means that, while employees will continue to be able to select PFOX for their contributions this year, the World Bank -- because PFOX is new to the list this year -- will only provide matching funds for donations to the group made before today.
[UPDATE: Metro Weekly has been informed that there are several other organizations that were recognized as eligible for the first time this year. They, per the email above, also would have their World Bank matching funds cut off as of today. According to the information received, they include:
NAME OF ORGANIZATION Advocacy Project Angel Flight Mid-Atlantic Arc of Montgomery County Be The Match Foundation Best Buddies Virginia Calvary Women's Services Center for Adoption Support and Education Central Union Mission CityDance Ensemble College Summit Dance Place Downtown Cluster of Congregations Ekal Vidyalaya Foundation GALA Hispanic Theatre Good Shepherd Housing International Justice Mission Korean American Sharing Movement Lamb Center LifeSTARTS Youth & Family Services National Wildlife Federation Omid Foundation USA Parents and Friends of Ex-Gays and Gays Reporters Without Borders USA Save A Child's Heart Foundation St. Coletta of Greater Washington Visitors' Service Center
With a Sunday morning tweet, former Lt. Dan Choi announced his plans for the week, writing, "True freedom is gained by going to jail for justice."
Today, he has written that a "Don't Ask, Don't Tell" protest will be happening at the White House at 2 p.m. The news follows Get Equal's visit to the office of Senate Majority Leader Harry Reid (D-Nev.), where they report, "Being told that the White House hasn't engaged with Senator Reid's office on #DADT repeal."
OutServe and Knights Out (an organization Choi helped form), however, appear to see things differently, providing opponents of lame-duck repeal with the first gay voices giving the go-ahead to politicians who might wish to cut DADT repeal from the National Defense Authorization Act.
In a joint statement issued by the groups, they write:
[O]n behalf of the more than 1,000 active duty gay and lesbian service members and 500 gay and lesbian veterans we represent, we respectfully urge Congress to pass the FY 2011 National Defense Authorization Act to fund the aircraft, weapons, combat vehicles, ammunition and promised pay-raises for all troops, whether or not the repeal of "don't ask, don't tell" is included.
To be clear, we will continue to fight for our integrity as gay and lesbian service members and we hope that legislative action in Congress can be taken in 2010 to lift the ban. With the support of President Obama, Chairman Mullen, Secretary Gates and the reported seventy-percent of service members surveyed, a new day of openly gay service is at hand if Congress acts during this lame duck session. We are proud to serve in the United States Armed Forces today and tomorrow.
[UPDATE: Servicemembers United executive director Alex Nicholson calls the Knights Out and OutServe position a "non-starter," writing to Metro Weekly:
It has been the position of the organizations that actually work on repealing 'Don't Ask, Don't Tell' to strongly oppose stripping the repeal language out of the defense authorization bill. That position has been based on the reality of the vote count, and those facts on the ground here in Washington have not changed. Servicemembers United, which is the nation's largest gay troop and veteran group by far, strongly agrees with the White House that stripping DADT out of NDAA is simply a non-starter.
Nicholson is not alone. Human Rights Campaign vice president of communications Fred Sainz told Metro Weekly in an email:
This is the work of good people who are extremely naïve legislatively. Their statement does not represent the consensus opinion of the organizations that work day-in and day-out on this issue. NDAA must be passed and it must include DADT repeal this year; the two should not be separated.
NDAA is the best and most sure-fire way to get DADT repealed. Remember, NDAA is how DADT became a law to begin with. The genius of the strategy was to incorporate DADT into the underlying bill so that we would be at this point right now.
As organizations sort out the impact of today's OutServe and Knights Out announcement, it is clear that the D.C.-based organizations working for repeal were caught off guard by it.]
[FURTHER UPDATE: J.D. Smith of OutServe issued the following statement, responding to the outcry from LGBT groups after OutServe's earlier statement:
Let us be clear on where we stand as we begin this lame duck session. Nowhere do we call for repeal to be stripped from the NDAA. No matter what, we will be soldiers in this fight and the real issue is this: while people like Senator McCain continue to demonize us as unpatriotic and disloyal soldiers, we will stand strong with our fellow military members. Unlike Senator McCain, we refuse to abandon our comrades at a time when this country is dealing with multiple military conflicts.
Senator McCain should be the target of the blame for the continued stalling and distractions during this process, and is responsible, ultimately, for perpetuating discrimination against gay and lesbian service members.
In the past few years on active duty, my greatest support has come from straight active duty service members. They have stood by me when leadership tried to investigate me under DADT and risked their careers in order to protect me. They have been the rock of my support over the years. As a gay man and a proud member of the military, I have two dogs in this fight. It is incredibly painful to see how politicians - especially Senator McCain - will play politics with the lives of patriotic Americans, gay and straight.]
Check back at Metro Weekly for more developments on DADT throughout the day.
It's not yet Thanksgiving, but the lame-duck session of Congress that begins today is the Democrats' best chance for a holiday in the near future.
It's also the last chance for President Obama to make good on his promise to secure repeal of the military's "Don't Ask, Don't Tell" policy this year. Additionally, say most observers, it's likely the last chance for legislative repeal in the next two years.
Get Equal began the overcast morning with a vigil at the gravesite of Sgt. Leonard Matlovich, a recipient of both the Purple Heart and Bronze Star whose tombstone at the Congressional National Cemetery includes pink triangles; the heading "A Gay Vietnam Veteran"; and the famed inscription, "When I was in the military they gave me a medal for kiling two men -- and a discharge for loving one."
With leaks of the Pentagon working group report looking at the repeal of "Don't Ask, Don't Tell" starting to come last week, the momentum for repeal appeared to pick up after rumors about the whether Democrats would drop the DADT repeal from the National Defense Authorization Act had circulated earlier in the week.
Then, the NOH8 project released an "anti-bullying message" video noting, among other things, that government actions "treat the LGBT community like second-class citizens." The messenger was particularly notable, as it came in the form of Cindy McCain.
The wife of the leading DADT repeal opponent in the Senate, Sen. John McCain (R-Ariz.), Cindy McCain minced no words in the video, saying, "Our political and religious leaders tell LGBT youth that they have no future ... they can't serve our country openly."
Later, she adds, "Our government treats the LGBT community like second-class citizens; why shouldn't they?"
The comments, so specifically directed at her husband's effort to stop the repeal of DADT, were striking and inspiring to many who saw the move as a sign of how far out of touch Sen. McCain had become.
Then, on Friday night, Cindy McCain effectively took back the words of the video, writing on Twitter, "I fully support the NOH8 campaign and all it stands for and am proud to be a part of it. But I stand by my husband's stance on DADT."
The pullback led to much chatter and questions, but the important part, for those who want DADT repeal, is that Sen. McCain then appeared on Meet the Press on Sunday -- still opposing repeal at this time and telling David Gregory, "Once we get this study, we need to have hearings. And we need to examine it. And we need to look at whether it's the kind of study that we wanted. It isn't in my view.
"I want a thorough and complete study of the effect on morale and battle effectiveness of the United States military. I will listen, as I've said for years, to our military leaders," he said. "This study was directed at how to implement the repeal -- not whether the repeal should take place or not."
That McCain would do so -- seek to further delay repeal by criticizing the study -- should not be a surprise. He said so in September, when he spoke with reporters following the failure of the Senate to move forward on debate of the NDAA. From Metro Weekly's report on the September Senate vote:
McCain added a new level to his opposition in his statement today, noting when asked about his previous concern about passing legislation prior to the conclusion of the Pentagon's implementation review, ''I'm also very concerned about this survey itself. This survey itself is how to best implement repeal. What we really need is a survey that says what would be the effect on battle readiness, morale and recruitment.''
When asked by Metro Weekly to clarify those remarks, McCain pulled back somewhat, saying, ''Obviously, I need to know how this survey was conducted, I need to know how complete it was, I need to know all of the aspects of it, and that's how I've always operated and how I'll continue to operate.''
Now, McCain is simply doing what he said he'd do. The only question is whether his previously stated position will have any impact on Senate Majority Leader Harry Reid (D-Nev.); Senate Armed Services Committee Chairman Sen. Carl Levin (D-Mich.); Republicans like Sens. Susan Collins (R-Maine), Olympia Snowe (R-Maine) or others; or President Obama as advocates push for lame-duck passage of the NDAA and DADT repeal.
Servicemembers Legal Defense Network executive director Aubrey Sarvis, in a statement released Sunday, clearly didn't think it should.
"McCain seems to be saying he wants a do-over because he doesn't like the findings and recommendations in the Pentagon report going to Secretary Gates," he said in the statement. "In other words, McCain is telling the Pentagon: Keep working until you produce the outcome I'm looking for."
What is still not clear, and frustrating to repeal advocates, is whether the White House will be engaging directly with senators whose votes are needed to move the NDAA forward in the lame-duck session.
As the session starts today, however, the clock for repeal is ticking -- and the chances for a lame-duck holiday will, without action to counter the perception and reality, get slimmer by the day.
Today, without comment, the U.S. Supreme Court denied the request of Log Cabin Republicans for the court to dissolve the stay pending appeal in Log Cabin Republicans v. United States entered by the U.S. Court of Appeals for the Ninth Circuit, which put a stop to U.S. District Court Judge Virginia Phillips's injunction halting the enforcement of "Don't Ask, Don't Tell" worldwide.
In "plain English," the Supreme Court refused to stop the enforcement of DADT while the merits of the LCR case are being considered by the Ninth Circuit.
This was not a surprising ruling, as the Supreme Court is loathe to involve itself with such procedural decisions when the merits of the case are still being considered by a lower court. It has happened, but it is rare. It would be all the more unusual here, in that a decision effectively would stop the enforcement of a law while the validity of that law is being considered by a lower court.
That said, it was the latter note in the curt's short order that could turn out to have been quite a significant development for the long-term prospects of the case.
"Justice Kagan took no part in the consideration or decision of this application," the order read.
Unfortunately, because of the way that the Supreme Court justices handle recusals, it is not clear the impact of this decision. The justices do not explain why they choose to recuse themselves, so it also is not clear the specific reason for Elena Kagan's decision not to participate in the consideration of the stay request.
While solicitor general, and as Kagan detailed during her Supreme Court confirmation hearings, she was involved in the decision not to appeal the Ninth Circuit's decision in Witt v. Dep't of the Air Force and the decision to oppose the Supreme Court taking an appeal of the First Circuit's decision in Cook v. Gates -- a case taken to the Supreme Court by James Pietrangelo II, who later handcuffed himself to the White House gate alongside Dan Choi. Kagan made it clear that she had significant involvement in these cases.
What was not clear at the time was whether Kagan believed that involvement would force her to recuse herself in other DADT cases. And, today's action doesn't necessarily mean -- although it does suggest -- that Kagan will recuse herself should the case reach the Supreme Court on the merits. (This is a deep-in-the-weeds discussion that I might get back to at a later point.)
If she does recuse herself, however, the court -- unlike many other courts -- would not replace her with another judge. The court, instead, would consider the case with only eight justices. If the court splits 4-4 in that situation, the lower court ruling would stand. Meaning, if the Ninth Circuit upholds DADT on appeal, the law would stand. If the Ninth Circuit strikes it down, it would continue to be unconstitutional. More importantly, though, in that situation, the court's decision does not apply nationwide and the impact of LCR's case would only apply to the Ninth Circuit.
This is the point at which the questions about the worldwide nature of Phillips's injunction become very important. If her worldwide injunction is upheld by the Ninth Circuit, then -- in practice -- it doesn't matter if the Ninth Circuit ruling is expanded to include the entire country -- because it already is worldwide. If, however, the Ninth Circuit decides that Phillips was right the DADT is unconstitutional but was wrong to issue such an expansive injunction, then the ultimate holding of the case could be limited in a way that would be very difficult for the military to enforce.
Of course, a repeal of the DADT law in the lame-duck session of Congress could, eventually, render this case -- and this whole convoluted discussion -- moot.
"A Pentagon study group has concluded that the military can lift the ban on gays serving openly in uniform with only minimal and isolated incidents of risk to the current war efforts, according to two people familiar with a draft of the report, which is due to President Obama on Dec. 1."
The article details, among other things, that a draft of the coming report is 370 pages and separated into one part detailing "whether repealing 'don't ask, don't tell' would harm unit readiness or morale." It is this part that discusses the much-criticized survey of troops.
According to O'Keefe and Jaffe:
More than 70 percent of respondents to a survey sent to active-duty and reserve troops over the summer said the effect of repealing the "don't ask, don't tell" policy would be positive, mixed or nonexistent, said two sources familiar with the document. The survey results led the report's authors to conclude that objections to openly gay colleagues would drop once troops were able to live and serve alongside them.
The second part "presents a plan for ending enforcement of the ban," the article states.
On the heels of the Post's report, the Palm Center issued a release headlined, "Experts: Pentagon Findings End Debate on Gays in the Military."
Among the experts quoted are Nathaniel Frank, the author of Unfriendly Fire, and a participant in the pre-election White House meeting held to discuss DADT repeal.
Frank said in the release, "The Pentagon has reportedly found what more than twenty other studies already found: that openly gay service does not harm military readiness. With the unit cohesion debate settled, the question now is political: Will lawmakers who were waiting for these findings keep their word and proceed to an up or down vote on whether to end discrimination in our armed forces?"
Aaron Belkin, the director of the Palm Center, said in the release, "A measure of the full report is still needed and there are undoubtedly adjustments that will need to be considered as any transition to openly gay service moves forward. However, the Pentagon itself has made the strongest case for the repeal of 'don't ask, don't tell" in stating that this can be done during wartime without harming unit cohesion or military readiness."
In a filing at the U.S. Supreme Court this afternoon, the U.S. government, represented by acting Solicitor General Neal Katyal, asked the court to leave in place the stay of U.S. District Court Judge Virginia Phillips's injunction of the "Don't Ask, Don't Tell" policy. The government's argument would keep DADT in effect while the Log Cabin Republicans v. United States case is on appeal before the U.S. Court of Appeals for the Ninth Circuit.
In part, Katyal concludes:
[T]he court of appeals reasonably decided to stay the district court’s injunction in its entirety, pending consideration of the merits of the government’s appeal.
That decision does not remotely present the sort of exceptional circumstances that would warrant interference with an interim order of the court of appeals. To the contrary, the court of appeals’ stay comports with this Court’s well-settled precedents, permits the continued nationwide operation of an Act of Congress that has governed in the military for 17 years, and preserves the status quo pending the court of appeals’ consideration of the merits of this facial challenge to that federal statute. Accordingly, this Court should deny Log Cabin’s application to vacate the stay.
Government's Opposition, at 28-29 (citations omitted). A declaration from Clifford Stanley, the undersecretary of defense for personnel and readiness, dated October 13, is attached to the government's filing.
The most important aspect of today's American Civil Liberties Union lawsuit challenging the Defense of Marriage Act's definition of marriage -- as reported on Monday night by Metro Weekly -- follows the rules of real estate: location, location, location!
Edith "Edie" Windsor -- a New York City widow who lost her wife, Thea Spyer, after a decades-long battle with multiple sclerosis and, later, a serious heart condition -- provides a ready-made picture for media operations centered in the Big Apple, and her compelling story is the type that can -- and will -- be told over and over in the coming weeks and months.
From the complaint:
Edie and Thea met in New York City in 1963 ....
Edie and Thea first met at Portofino, a restaurant in Greenwich Village, where it was comfortable for a lesbian clientele to go on Friday evenings. Edie, who was working long hours at her job, decided to call an old friend and ask her to take her "to where the lesbians go." At the restaurant, Edie was introduced to Thea. Although Edie and Thea were each there with other people, they danced together all night. In fact, by the end of the evening, Edie had danced a hole through the bottom of one of her stockings.
After a wedding engagement that lasted more than forty years, and a life together that would be the envy of any couple, Thea and Edie were finally legally married in Toronto, Canada in 2007. Having spent virtually their entire lives caring for each other in sickness—including Thea's long, brave battle with multiple sclerosis—and in health, Thea and Edie were able to spend the last two years of Thea's life together as married.
And, then, after Thea died as a result of her heart condition, the legal conflict:
New York State legally recognizes Edie and Thea's marriage and provided them with the same status, responsibilities, and protections as other married people. However, Edie and Thea were not considered "married" under federal law because of the operation of the statute known (ironically) as the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7.
And, finally, the ACLU's summary of the wrong that Windsor is seeking to have righted:
This clearly unequal treatment of Edie and Thea's marriage both demeans their remarkable commitment to one another and has great practical significance for Edie, the sole beneficiary of Thea's estate. Under the Internal Revenue Code, the transfer of money or property from one spouse to another upon death generally does not trigger any estate tax at all. Because of the operation of DOMA, however, the federal government does not consider Edie and Thea to have been married, and, as a result, Edie has been forced to pay more than $350,000 in federal estate tax that she would otherwise not have had to pay if Edie and Thea's marriage were recognized under federal law.
The remedy sought by the ACLU is simple.
As Roberta Kaplan, the lawyer with Paul, Weiss, Rifkind, Wharton & Garrison LLP who is the lead attorney on the case, told Metro Weekly on Monday night, "What we're seeking in the case is a check back -- with interest."
As reported on Monday night by Metro Weekly, the Gay and Lesbian Advocates and Defenders filed a lawsuit today challenging the application of the Defense of Marriage Act's definition of marriage to several same-sex married couples and one widow in a federal lawsuit filed in Connecticut.
At first glance, the lawsuit looks similar to the Gill v. Office of Personnel Management lawsuit that resulted in a successful trial court ruling in July.
The lawsuit expands upon Gill, though, in a particularly significant way -- reaching to state and private corporation discriminatory treatment resulting from DOMA.
In Gill, only federal programs and federal government-provided benefits were questioned -- from Social Security to passports to taxes. In today's lawsuit, Pedersen v. Office of Personnel Management, state and private entities' actions are brought into the lawsuit.
The actions are challenged not because of discretionary decisions made by the state or private entities, but instead because of those programs' adherence to federal laws and regulations. An example comes from Count IV of the complaint, Janet Geller and Joanne Marquis v. Timothy F. Geithner and Douglas H. Shulman:
Under existing [Internal Revenue Code] statutes and regulations as well as New Hampshire state law, Jo would receive a medical subsidy spousal benefit from the [New Hampshire Retirement System] to help pay for her legal spouse Jan’s private health insurance premiums, but for DOMA, 1 U.S.C. § 7, which prohibits the NHRS as a tax-qualified plan from providing the benefit to an otherwise qualified retiree’s spouse if that spouse is of the same sex.
With regards to private companies, GLAD's lawsuit details the actions taken by Bayer Corporation against Gerald V. Passaro II, the widower of Thomas M. Buckholz. Buckholz had been an employee of Bayer for more than 20 years. From the lawsuit:
Under the terms of the Bayer [Corporation Pension] Plan, and in compliance with applicable federal law, where a Participant, like Thomas Buckholz, who has vested and has a nonforfeitable right to benefits under the Bayer Plan, dies prior to his annuity start date, the Participant's surviving spouse shall be paid a Preretirement Survivor Annuity. (Bayer Plan, §5.6(a)).
As a result of the application of DOMA, 1 U.S.C. § 7, through ERISA and the Internal Revenue Code, Jerry has been denied the vested qualified preretirement survivor annuity (QPSA) available to all spouses of vested participants in defined benefit pension plans in the equivalent situation as Jerry finds himself today even though he is legally Tom's surviving spouse under Connecticut law.
This expansion of the lawsuit to cover the actions taken by state and private actors as a result of DOMA -- though extremely significant -- is just one of the two primary differences between today's filing and Gill.
The other, more obvious distinction is that the Connecticut filing of the case means that an appeal from this case would go to the U.S. Court of Appeals for the Second Circuit, which includes New York. Gill, coming from Massachusetts, is being appealed to the First Circuit. Those two circuits encompass all of the jurisdictions except Iowa and the District of Columbia that currently have marriage equality.
[UPDATE @ 12:25 PM: In order to avoid any confusion, it's important to note that when GLAD filed Gill, Massachuestts Attorney General Martha Coakley followed up by filingMassachusetts v. United States. It was that case -- not Gill -- that implicated the Tenth Amendment and the Spending Clause. GLAD's case in Gill -- like their case here -- is based on, as Judge Tauro wrote in Gill, DOMA's alleged "violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment."
(The Fourteenth Amendment provides for equal protection of the laws against state action, but the Fifth Amendment's due process clause has been interpreted by the U.S. Supreme Court as requiring the federal government to provide equal protection of the laws.)]
[Photo of Janet Geller and Joanne Marquis provided by GLAD. GLAD's video -- featuring GLAD's Mary Bonauto -- about the case can be found below.]
The Defense of Marriage Act is due for a two-pronged attack on Tuesday, as two separate organizations and sets of lawyers, representing different plaintiffs, plan to file lawsuits in federal court challenging the federal definition of marriage.
The Gay and Lesbian Advocates and Defenders (GLAD) plans to file a lawsuit in Connecticut challenging DOMA’s Section 3, which defines "marriage" and "spouse" in federal law as being limited only to opposite-sex couples. The plaintiffs are to include couples from several New England states with marriage equality, including Connecticut, New Hampshire and Vermont. [READ Metro Weekly's post-filing follow-up: "GLAD Expands DOMA Challenge to Include State, Private Company Consequences of DOMA."]
Meanwhile, in New York City, the American Civil Liberties Union and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP plan to file a lawsuit on behalf of Edith Windsor, the widow of Thea Spyer. Windsor was forced to pay a $350,000 estate bill because of the federal government’s refusal to recognize Windsor's marriage to Spyer. [READ Metro Weekly's post-filing follow-up: "ACLU's DOMA Challenge Brings Marriage Questions to NYC."]
The GLAD case is modeled after a similar challenge the organization brought in Massachusetts, which resulted in U.S. District Court Judge Joseph Tauro ruling in July that the marriage definition was unconstitutional as applied to several same-sex couples who had been legally married in Massachusetts.
The New York City couple, whose 2007 wedding in Toronto was featured in The New York Times, were the subject of a documentary, Edie & Thea: A Very Long Engagement. New York recognizes same-sex marriages performed legally in other jurisdictions for limited purposes.
Roberta Kaplan, a partner at Paul Weiss who is working on the case "100 percent pro bono," spoke with Metro Weekly on Monday night about Windsor’s lawsuit, summing the case up by saying, "If Thea were Theo, she would have been able to pass her estate to Edie tax-free."
Kaplan presents the facts succinctly.
"I have an 81-year-old client, and $350,000 is a hell of a lot of money -- a huge amount of money that she paid in violation of the Constitution," Kaplan said. "My client had to pay the government, and she wants her money back.
"What we’re seeking in the case is a check back -- with interest."
Asked about the comparison between the New York case and the GLAD case in Connecticut, Kaplan said, "I think the cases complement each other very well."
The GLAD case will feature several plaintiffs, including lead plaintiffs Joanne Pedersen and Ann Meitzen of Connecticut, who the GLAD news release about the case details "have been together for 12 years, and were married in 2008."
Pedersen is retired from the Department of Naval Intelligence, according to the release and is unable to put Ann, who has serious and chronic lung conditions, on her health insurance plan. Other plaintiffs in the case challenge the inability to receive leave under the Family and Medical Leave Act, Social Security death and other survivor benefits, as well as other differential treatment resulting from DOMA’s definition of marriage.
Regarding the legal theories of the cases, Kaplan said of Windsor's case, "It's about a place [New York] where the marriage is recognized, so it's similar to that theory [pursued by GLAD]."
But, "[b]ecause I think these cases come up in all sorts of different contexts," Kaplan said that Windsor's case was a "dramatic" example of the discrimination couples face from DOMA.
"I think this case really gets people in the gut," she said. "Everyone can see themselves in the position Edie found herself in" -- noting again, however, that solely because Windsor was married to a woman and not a man she faced "a $350,000 tax bill."
Kaplan, who has worked with the ACLU seeking marriage equality in New York under state law, said of this effort, "The best way, I think, to move ahead is to play on all the playing fields at the same time -- including in state and federal court."
Asked if the ACLU case figures into those efforts to gain marriage equality in the state, she said, "In the bigger picture, I think this case is really part of that -- but ... it's not a part of the state legislative battle."
When asked about the questions that have been raised regarding the Department of Justice's defense of DOMA and the "Don't Ask, Don't Tell" law in court, Kaplan at first demurred.
Then, of Windsor's case, she said, "What I do think is true is that in this case the Department of Justice is going to have a very hard time coming up with a reason to give a judge in the Southern District of New York why Edie and Thea should be treated differently than if they were Edie and Theo."
[Photo of Windsor and Spyer from Edie & Thea: A Very Long Engagement. Trailer for the documentary, which is to be released on DVD later this month, is below.]
In the past 24 hours, several media outlets have reported on the possibility of a version of the National Defense Authorization Act (NDAA) moving forward in the Senate with the "Don't Ask, Don't Tell" repeal provision stripped from it – discussions the leadership at the Human Rights Campaign struck back at today as "background noise" that does not have the support of Democratic leaders in the Senate.
[UPDATE @ 7:25 PM: Dan Pfeiffer, White House communications director, said in a statement on Monday evening, "The White House opposes any effort to strip 'Don't Ask, Don't Tell' from the National Defense Authorization Act."]
In The Wall Street Journal, Laura Meckler reported, "Sens. Carl Levin of Michigan and John McCain of Arizona, the top Democrat and Republican on the Senate Armed Services Committee, are in talks on stripping the proposed repeal and other controversial provisions from a broader defense bill, leaving the repeal with no legislative vehicle to carry it."
On Monday, Fred Sainz, HRC's communications vice president, called the reports "interesting background noise," but added, "At this point, this is nothing more than a rumor that has always been a possibility."
The Advocate's Kerry Eleveld earlier had reported that "observers of the 'don't ask, don't tell' debate began cautiously acknowledging that an effort is in the works to potentially move a stripped down version of the must-pass National Defense Authorization Act that would exclude repeal."
Sainz, however, said, "As you would expect, Republicans like McCain are going to be shopping around any option that strips 'Don't Ask, Don't Tell' repeal from the underlying bill."
As Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network told The Advocate, he believed there are several options being considered, including one option that would entail an NDAA without the DADT repeal provision. Sarvis told The Advocate, "Levin doesn't want to be the first committee chairman (in half a century) not to see an NDAA pass."
Of any effort by McCain to get Levin to agree to remove DADT repeal from the NDAA, Sainz concurred with Sarvis's line of thinking, telling Metro Weekly, "[McCain] is going to appeal to Levin wanting to get something done. Telling him, 'Don't be caught empty-handed [without passage of any defense authorization bill in the 111th Congress.].'"
But, suggesting a slight difference of opinion from Sarvis's comments, Sainz said, "We haven't seen any evidence of Democrats – and especially those in leadership – that have taken the bait."
In what he called a sign that HRC truly does believe that talk of DADT repeal’s demise to be just talk, HRC sent staff out across the country today to eight states important for Senate repeal. Sainz said that staff had been dispatched to Alaska, Arkansas, Illinois, Indiana, Maine, Ohio, Virginia and West Virginia.
As was done earlier this year, Sainz said, the staff would be focused on recruiting veterans and non-veterans and organizing them for all aspects of engaging grassroots support for repeal – from postcards and phone calls to letters to the editor and direct lobbying.
HRC's targets include picking up votes of senators who voted against moving the NDAA forward in September or holding onto the votes of those senators' seats that will be changing hands because of special elections in November:
In Alaska, Sen. Lisa Murkowski (R), who voted against moving forward the NDAA in September, is still uncertain of the outcome of her Senate write-in campaign to retain her seat after having lost the Republican primary to Tea Party candidate Joe Miller.
In Arkansas, Sen. Blanche Lincoln (D), who voted against moving the NDAA forward in September, is in her final months in the Senate, having lost re-election to Republican John Boozman.
In Illinois, Rep. Mark Kirk (R) – who voted against the DADT repeal amendment in the House – won the special election to fill out the remaining months of then Sen. Barack Obama’s Senate term. He will replace repeal-supporting Sen. Roland Burris (D).
In Indiana, Sen. Richard Lugar (R) voted against moving the NDAA forward in September, but was considered a likely possible vote for repeal.
In Maine, Republican Sens. Susan Collins and Olympia Snowe are generally supportive of LGBT equality measures and were thought to be likely possible votes for repeal, despite both voting against moving the NDAA forward in September. Collins voted for the inclusion of DADT repeal in the NDAA as a member of the Senate Armed Services Committee (SASC), as well as voting to move the NDAA out of committee.
In Ohio, Sen. George Voinovich (R) is retiring, but was considered a possible vote for repeal although he voted against moving the NDAA forward in September.
In Virginia, Sen. Jim Webb (D) voted against the DADT repeal amendment in SASC, but then voted to move the NDAA -- with DADT repeal included -- out of SASC and voted in September to move the NDAA forward on the Senate floor.
In West Virginia, Sen. Carte Goodwin (D) will be replaced by Gov. Joe Manchin (D). Goodwin voted to move the NDAA forward, but Manchin's campaign staff told the Wonk Room in September that Manchin "doesn't believe the rules should be changed until the battlefield commanders can certify it doesn't hurt unit cohesion."
Over the weekend, the military leadership began weighing in on the post-election landscape for the repeal of "Don't Ask, Don't Tell." Although the decision to be made is a legislative one and one that President Barack Obama supports, the military leadership's support -- or opposition -- has played into support for and opposition to DADT repeal throughout the year. The next steps from military leaders could spell another challenge for repeal efforts or breathe new life into the chances of completing repeal in the lame-duck-session of Congress.
On Saturday, Defense Secretary Robert Gates told reporters, "I would like to see the repeal of 'don't ask, don't tell' but I'm not sure what the prospects for that are," according to the Associated Press. The AP report noted that Gates said Congress should act in the lame-duck session to do so.
The comments came on the heels of comments from the new Marines commandant, Gen. James Amos, who said Saturday that combat is "intimate" and that this intimacy makes him uncertain of the impact of repealing DADT on "unit cohesion" and "combat effectiveness.
According to the Associated Press, Amos said, "There is nothing more intimate than young men and young women – and when you talk of infantry, we're talking our young men – laying out, sleeping alongside of one another and sharing death, fear and loss of brothers. I don't know what the effect of that will be on cohesion. I mean, that's what we're looking at. It's unit cohesion, it's combat effectiveness."
Back in May, it was at this point in the legislative process -- right before congressional action was thought to begin happening (and did happen) -- when all of the service chiefs issued letters questioning the timing of the amendment being considered in both chambers' Armed Services committees.
As Sen. Jim Webb (D-Va.) told Metro Weekly at the time, "I think there's a measure of respect here that goes to the service chiefs." A person lobbying Republican offices said at the time that the service chiefs' letters "killed" attempts to get GOP votes.
Now, however, with only a few weeks remaining until the Dec. 1 date when the Pentagon working group looking at DADT repeal implementation is supposed to have its report into Gates, the views of the service chiefs may be seen by some members of Congress as relevant once again.
They also may have changed.
With preliminary reports about the survey of servicemembers suggesting that opposition to openly gay and lesbian service is not as widespread as some of the service chiefs have suggested, and with questions about the ongoing appeal of Log Cabin Republicans v. United States as the background scene, it is not clear that -- despite the comments from Amos -- all of the service chiefs would be willing to send a similar letter opposing lame-duck passage of the repeal amendment.
Why would they change their views? First, the review is to end before the lame-duck session ends. Second, one or more of the service chiefs could have made a determination over the course of the review that repeal would not harm the military. Third, the review could have convinced one or more of the sevice chiefs that any issues raised by repeal could be easily addressed or otherwise mitigated. Fourth, the possibility of a court-ordered end to DADT -- and the very uncertainty that comes from ongoing litigation -- could convince one or more of the chiefs that legislative repeal now is best.
The people in the military leadership to watch in the next few days, then, are the chairman of the Joint Chiefs of Staff Adm. Mike Mullen -- who made a strong statement in support of repeal before the Senate Armed Services Committee in February -- as well as Army chief of staff Gen. George Casey Jr., chief of naval operations Adm. Gary Roughead and Air Focre chief of staff Gen. Norton Schwartz.
If Amos stands alone in the military leadership as speaking out against DADT repeal in the lame-duck session -- or if Casey, Roughead or Schwartz speak out in favor of lame-duck repeal -- the momentum for action in the lame-duck session could get a major boost. If Amos finds his comments echoed in coming days by his colleagues, repeal advocates will need to confront that reality with political strength in order to offset the military leaders' comments.
Regardless of the comments of the military leadership, however, the action needs to come from Congress, and the Senate is the body that needs to pass the National Defense Authorization Act in the coming weeks in order to get the bill through a conference committee with the DADT repeal amendment intact, passed by both bodies and signed into law before the end of the 111th Congress.
Majority Leader Harry Reid (D-Nev.) and Senate Armed Services Committee Chairman Carl Levin (D-Mich.) need to decide whether they have the political will, and Republican support, to move the bill -- with or without the support of the military leadership.
As Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said in a statement on Sunday, "If the President, Majority Leader Reid, Secretary Gates, and a handful of Republican senators are committed to passing the comprehensive defense bill, there is ample time to do so."
The level of their commitment to ending DADT -- with or without the support of the service chiefs -- will become clear as the 111th Congress, and Democratic control of both chambers, comes to a close over the next two months.
Although -- as Metro Weeklyreported earlier -- some analysts and strategists are discussing the impact of the loss of Rep. Patrick Murphy (D-Pa.) in the House on "Don't Ask, Don't Tell" repeal, Servicemembers Legal Defense Network spokesman Trevor Thomas told Metro Weekly in an email, "SLDN's focus right now is in the Senate during the lame duck session."
Providing some of the first post-election details into the lame-duck process, Thomas wrote, "The Chairman of the Senate Armed Services Committee, Carl Levin [(D-Mich.)], is actively pushing to get the NDAA (National Defense Authorization Act) taken up.
"In fact, Chairman Levin is working on that right now with the Senate Majority Leader [Harry Reid (D-Nev.)] and reaching out to key Republican senators for a bi-partisan approach in the lame duck," he wrote. "We have seen a significant amount of data that speaks to voter dissatisfaction with incumbents regarding the economy and government spending."
As for the House, Thomas wrote, "I have no doubt House champions such as Congresswomen Susan Davis (D-Ca.) and Ileana Ros-Lehtinen (R-Fla.) will continue to be strong repeal advocates, and they, too, are pushing hard to get this done in the lame duck session."
Igor Volsky at the Wonk Room, meanwhile, detailed that today President Barack Obama made no mention of the NDAA or DADT in a brief discussion with reporters about lame-duck priorities after today's Cabinet meeting.
Saying she is "sanguine" not overly hopeful about the chances for passage of comprehensive immigration reform that includes the Uniting American Families Act in the coming weeks, Immigration Equality executive director Rachel Tiven said 2011 doesn't look good either.
On a conference call Thursday with Immigration Equality supporters and journalists, though, Tiven wasn't giving up, saying, "We're going to do our damnedest in the lame-duck [session] to push it forward."
Noting that "at least the first year of the 112th [Congress] is going to be very difficult to move immigration reform," Tiven focused -- legislatively -- on the progress made in the 111th Congress and the lame-duck session.
"It is [now] understood by Senate leaders and House members supporting reform that you can’t have comprehensive immigration reform without [UAFA]," she said. "Without all families, it isn't comprehensive."
She urged supporters of reform to call their senators now to push for passage of S.B. 3932, the UAFA-inclusive comprehensive immigration reform introduced this fall by Sens. Robert Menendez (D-N.J.) and Patrick Leahy (D-Vt.).
Talking about the starting point for the 112th Congress in January, however, Tiven said on the call that, of the 135 co-sponsors of UAFA, 16 will not return to the House – nine of whom lost their races on Tuesday. In the Senate meanwhile, three of the 25 co-sponsors will not be returning. Sen. Russ Feingold (D-Wisc.) was the only Senate co-sponsor to lose his race on Tuesday.
"The reality is that there is a loss on co-sponsorship," she said, while noting, "No one was attacked in this election cycle because of their support for UAFA."
Of their approach in the new Congress, Tiven said that Immigration Equality always has advanced a three-prong approach: "Administrative, judicial and legislative."
"We are pushing the other two branches to act to minimize the harm, [but … a] full solution … has to come from Congress," she said. "Fixing it is the only way to fix it."
[Photo of Rachel Tiven provided by Immigration Equality.]
At his news conference Wednesday afternoon, President Barack Obama was asked by CNN's Ed Henry about the repeal of the "Don't Ask, Don't Tell" policy.
Of gay and lesbian servicemembers, he said, "They should not be prevented from doing so because of their sexual orientation. ... The overwhelming majority of Americans feel the same way."
On how to make that happen, Obama returned to his and his administration's general response to the issue, saying, "As commander-in-chief, I've said that making this change needs to be done in an orderly fashion ... to make sure that we are looking at this in a systematic way that maintains good order and discipline, but that we need to change this policy."
He went on to note that the Pentagon working group is to complete its report on repeal implementation by Dec. 1. He said of the review's release, "That will give us time to act, potentially, during the lame-duck session to change this policy."
He did not address how changed dynamics in the Senate -- including the addition of Senator-elect Mark Kirk (R-Ill.), who voted against DADT repeal in the House, to the lame-duck session -- would impact the chances for legislative repeal
Obama then talked about the court cases that exist challenging DADT, saying that having "this issue bouncing around in the courts" is "very disruptive to good order and disclipline and unit cohesion" because "the Pentagon and the chain of command doesn't know at any given time what rules they're working under."
Obama did not address his administration's decision to appeal the trial court ruling in Log Cabin Republicans v. United States, which has led to confusion, consternation and outright anger from certain segments of the LGBT and legal community.
He concluded, however, with more strong language than he has used thus far in his comments on the end of the 1993 law and resulting policy, saying, "We need to provide certainty, and it's time for us to move this policy forward."
He added, "And this should not be a partisan issue -- this is an issue, as I said, where you've got a sizable portion of the American people squarely behind the notion that folks who are willing to serve on our behalf should be treated fairly and equally."
In a statement, Human Rights Campaign president Joe Solmonese supported the president's call for lame-duck action while noting that it was just "the first step" that Obama will need to take to ensure repeal.
"The President's call for repeal today is a first step of many needed to fulfill his state of the union promise to end the law that harms our national security," Solmonese said. "We urge the Senate to heed the President's call for action in the post-election session and look forward to his continued leadership in seeing this through."
In Iowa, which declared Iowa's marriage ban unconstitutional under the state's constitution in 2009, the National Organization for Marriage got one of its first electoral victories this year. The judicial retention elections appear to have resulted in the replacement of all three justices up for a vote this year.
Here, as of 3:35 a.m. and with 1767 out of 1774 precincts reporting, are the Iowa Secretary of State's election results:
Supreme Court Justice David L. Baker Yes 443437 45.75% No 525865 54.25%
Supreme Court Justice Michael J. Streit Yes 442459 45.6% No 527921 54.4%
The court was unanimous in its 2009 ruling that Iowa's constitution required marriage equality.
One Iowa executive director Carolyn Jenison wrote to supporters in an e-mail, "In this election, three of the courageous justices who recognized the freedom to marry in Iowa fell victim to a perfect storm of electoral discontent and out-of-state special interest money. In addition, many of our pro-equality allies from Governor Culver to statehouse candidates lost their seats due to an anti-incumbent mood that swept the nation.
"In the months and weeks ahead we can expect renewed attempts to overturn the freedom to marry and write discrimination into the Iowa Constitution," she wrote. "It will take a concerted and collective effort on the part of pro-equality Iowans to respond to these attacks and defend on our liberties."
Human Rights Campaign president Joe Solmonese, meanwhile, said in a statement about the loss, "By their own admission, NOM's Iowa strategy was about sending a warning shot to judges nationwide. NOM and its secret donors will continue to target judges around the country if they rule in favor of marriage equality and will foster an anti-gay, hostile environment in the process."
Meanwhile, the Courage Campaign's Rick Jacobs said in the same statement, "Having seen its extremist agenda increasingly rejected by the courts and the American people, it is telling that NOM has now settled on a strategy of evading tax and election laws and trying to intimidate judges. These are the tactics one might expect from Al Capone, not a credible political organization."
It was not immediately clear whether Gov. Chet Culver (D) would replace the justices in the remaining time he is governor, or if they would be replaced by Gov.-elect Terry Branstad (R).
The push by some for a constitutional convention in the state, however, was exceptionally unsuccessful:
Constitutional Convention Question Vote for 1 Precincts Reported 1659/1774 Yes Non-Partisan 292147 32.71% No Non-Partisan 601039 67.29%
Read the full One Iowa message below the jump.
[UPDATE @ 3:15 AM: The justices released a statement:
It was our great privilege to serve the people of Iowa for many years. Throughout our judicial service we endeavored to serve the people of Iowa by always adhering to the rule of law, making decisions fairly and impartially according to the law, and faithfully upholding the constitution.
We wish to thank all of the Iowans who voted to retain us for another term. Your support shows that many Iowans value fair and impartial courts. We also want to acknowledge and thank all the Iowans, from across the political spectrum and from different walks of life, who worked tirelessly over the past few months to defend Iowa’s high-caliber court system against an unprecedented attack by out-of-state special interest groups.
Finally, we hope Iowans will continue to support Iowa’s merit selection system for appointing judges. This system helps ensure that judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.
Chief Justice Marsha Ternus Associate Justice Michael Streit Associate Justice David Baker
Tuesday's votes will lead to lots of changes, but the loss of two Democratic supporters of LGBT issues, Rep. Patrick Murphy (D-Pa.) and Sen. Russ Feingold (D-Wisc.), are noteworthy -- and, for some, stinging.
In a sign of the growing noise from gay Republicans, though, the challengers to both incumbents were supported by one of the right-partisan gay groups.
With a vote of 54 percent to 46 percent, Murphy has lost re-election to Congress to Mike Fitzpatrick (R). Fitzpatrick, a former congressman who had a moderate record but ran a more conservative race in 2010, will return to Congress in January. Murphy has been the House champion for the repeal of "Don't Ask, Don't Tell," sponsoring the amendment aimed at repeal that was passed by the House in May.
Servicemembers Legal Defense Network executive director Aubrey Sarvis said in a statement, "Tonight the House of Representatives and our country lost a bright, capable young leader.
"SLDN will forever remember and be grateful for Patrick's remarkable leadership in the fight to repeal DADT, and I have no doubt Patrick Murphy will be back to serve this nation again," he said. "We appreciate his long and extraordinary service to our country."
Likewise, Feingold, with a similar margin, lost this evening to Ron Johnson (R). As Justin Elliot wrote at Salon, "Feingold, the three-term civil libertarian senator who was a hero to progressives for, among other votes, opposing the PATRIOT Act in the weeks after Sept. 11, was trounced today by Republican and Tea Partier Ron Johnson."
Feingold was one of seven remaining senators of the 14 who had voted against the Defense of Marriage Act in 1996. The other six are Sens. Akaka (D-Hawaii), Boxer (D-Calif.), Feinstein (D-Calif.), Inouye (D-Hawaii), Kerry (D-Mass.) and Wyden (D-Ore.).
Of Murphy's loss, Stonewall Democrats executive director Michael Mitchell said in a statement, "To say that we are heartbroken at the loss of one of our champions, Rep. Patrick Murphy, in his fight for reelection is an understatement. With DADT repeal, his commitment to our community never wavered. It was an honor to have Patrick as one of our ElectEquality candidates and we are proud of our efforts to help return him to Congress."
The Log Cabin Republicans had endorsed Fitzpatrick, tellingThe Washington Post's Jonathan Capehart, "While we may not agree on every issue with a candidate we endorse, we have a continued dialogue with these Members in our efforts to secure further Republican support for legislation that benefits gay and lesbian Americans."
GOProud, meanwhile, had recommended -- but not endorsed -- Johnson's challenge to Feingold on Monday.
In the announcement of five Senate recommendations, GOProud stated that the recommendation list "represents races where GOProud is strongly encouraging its members and allies to support these men and women."
Out Rep. Barney Frank (D) -- despite opposition from GOProud -- is cruising to victory in Massachusetts, nearly doubling his challenger, Sean Bielat. Frank will be joined by another out New Englander -- Providence, Rhode Island, Mayor David Cicilline (D) -- in the 112th Congress.
With 62 percent of precincts reporting, according to the AP, Frank stood at 61 percent to Bielat's 36 percent.
Through 15 elections as a candidate for Congress, Frank has survived charges of carpetbagging, two rounds of redistricting, and a personal scandal that nearly doomed his career. This time, he battled economic instability, voter unrest, and the rise of the Tea Party.
The Victory Fund's president and CEO, Chuck Wolfe, celebrated Frank's victory, announcing in a statement, "Barney Frank is nothing if not a fighter, and we're very happy he will return to the House and continue to fight for the people of Massachusetts and for all LGBT Americans. Nobody has worked harder or longer in the U.S. Congress for fairness and equality for the LGBT community."
David Cicilline, the out mayor of Providence, Rhode Island, will join Frank in Congress in January. With 90 percent of the precincts in the district reporting, Cicilline is up by more than 8,000 votes at 10:30 p.m. with more than 50 percent of the vote. According to the Rhode Island Board of Elections:
David N. CICILLINE (DEM) 70230 50.6% John J. LOUGHLIN, II (REP) 61668 44.5% Kenneth A. CAPALBO (IND) 5611 4.0% Gregory RAPOSA (Fox) 1190 0.9%
The Victory Fund's Wolfe said in a statement, "Mayor Cicilline will be a strong advocate for all Rhode Islanders, but he will also be an authentic voice for the millions of gay, lesbian, bisexual and transgender Americans who long for the day when we will be treated equally under law."
Out Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.) did not face races that even reached to the challenge that some had claimed Frank faced.
Polls, meanwhile, have not yet closed in out Democrat Steve Pougnet's challenge to Rep. Mary Bono Mack (R) in California.
[Photo by Chris Geidner at the Victory Fund Leadership Awards Gala in 2010.]
In Lexington, Kentucky, Jim Gray -- currently the vice mayor of the city -- has defeated incumbent Mayor Jim Newberry in an election that would have made little notice were it not for the fact that Gray is gay and out.
That fact was noted by Craig Cammack, the chairman of Lexington Fairness. Writing that he was at Gray's acceptance speech, Cammack called it "[a]n amazing move for Kentucky and Midwest in LGBT representation."
Speaking with Metro Weekly on Tuesday night, Cammack expanded on his remarks, saying, "I think what Jim Gray's victory is more of a visualization. There is fairness in Kentucky -- and in the Midwest."
Asked if Gray's sexual orientation had any impact on the race, Cammack said, "It actually didn't."
Noting that Gray came out several years ago and was out while serving as vice-mayor, Cammack said, "He's a huge supporter of [Lexington Fairness], and always comes out to our events, whereas the former mayor never participated in that.
"We are very lucky in Lexington. We have a fairness ordinance here ... but if you step outside Lexington you're not protected [in most of the state]," he said. "We now have a Senator Rand Paul -- that's crazy -- but we have Jim Gray who stands as example that some [in Kentucky] support fairness."
Gray almost stands out most for how much he doesn't stand out. From his bio:
Jim literally grew up in his family’s business, working after school in the firm’s small office in the basement of a restaurant in Glasgow. Tragedy struck the family business in 1972 when Jim’s father passed away at the age of 54, leaving a small business, a wife and six children. At the time, Jim was 19 and a freshman at college. Jim left school and returned home to help run the family business, while completing his degree closer to home.
The Victory Fund, which first noted his success, included a statement from Chuck Wolfe, its president and CEO, who said in the statement, "This is a tremendous victory for Lexington, for Kentucky’s LGBT community and for fairness. We are proud of Jim Gray and his fantastic campaign staff who fought hard for this win."
Where will the the night end for the first female speaker of the U.S. House of Representatives?
Speaker Nancy Pelosi (D-Calif.) has pushed a moderately progressive to extremely liberal -- depending on your vantage-point -- agenda through the House, but often her attempts at legislation to those ends have been stymied by a Senate unwilling to act or requiring more moderate bills for passage.
From climate change to "Don't Ask, Don't Tell" repeal, the Senate has not acted on several of the more progressive-supported, House-passed bills. With health-care reform, LGBT provisions and the "public option" supported in the House were opposed by the Senate and not a part of the bill that was signed into law by President Barack Obama.
Now, as the close of polls nears on Election Day on the East Coast, The New York Times's Nate Silver projects at his FiveThirtyEight blog that the House will end up with a 232-Republican majority and 203-Democrat minority.
Thirty Democrats' seats are likely to be lost to Republicans, including Demorcatic Reps. Tom Perriello -- facing Tom Hurt (R) -- in Virginia and Mary Jo Kilroy -- facing Steve Stivers (R) -- in Ohio.
Although Rep. John Boccieri (D-Ohio) has been closing the gap against his opponent, Jim Renacci, he too is still facing an uphill battle. DADT repeal champion Rep. Patrick Murphy (D-Pa.) likewise is not favored to end the night by besting his challenger, former Rep. Mike Fitzpatrick (R).
In the D.C. metro area, Fairfax's Rep. Jerry Connolly (D-Va.) faces a challenge from Keith Fimian (R) in a race that has gotten unexpectedly close in the closing weeks of the election. Rep. Barney Frank (D-Mass.) has faced a strong challenge from Sean Bielat, although he is still expected to retain his seat.
In the open seat held by Rep. Patrick Kennedy (D-R.I.), out politician David Cicilline (D) remains the favorite to win the seat, although John Loughlin has picked up some traction in the closing two weeks of the campaign.
Menwhile, of Republican Reps. Mary Bono Mack (R-Calif.), Joseph Cao (R-La.) and Charles Djou (R-Hawaii) -- early targets for Democratic takeovers -- Cao is expected to lose his seat, to Cedric Richmond (D), and Djou is fighting off a strong challenge from Colleen Hanabusa (D). Bono Mack is likely to succeed in her raca against out challenger Steve Pougnet (D). Bono Mack and Djou both have the support of both GOProud and the Log Cabin Republicans, while Cao also has LCR's support.
Regardless of the outcome of some of these particular races, the overall trend is expected to leave Pelosi out of the speakership but still in the House.
Soon enough, though, expectations will be proven true or -- in an outcome doubtless preferred by Pelosi -- she will remain in charge of the speaker's gavel for another session of Congress.
It was not too long ago that the Democrats had -- finally -- seated the 100th senator: Sen. Al Franken (D-Minn.). That magic 60-vote count didn't last.
As 2009 became 2010, Sen. Byron Dorgan (D-N.D.) announced his retirement and the expected loss of his seat to the Republicans -- setting in place a challenge for the Democrats to pick up a retiring Republican's seat to hold onto the filibuster-proof majority.
Then, Sen. Scott Brown (R-Mass.) took his seat later that month, and the Democrats lost their 60-seat hold. With the retirement announcement of Sen. Evan Bayh (D-Ind.) in February, the Senate majority for the Democrats continued to recede.
Tonight, few analysts foresee a Republican majority at the end of the night. The 60 seats held by the Democrats just one year ago, however, are a thing of the past.
With the expected loss of Sen. Blanche Lincoln (D-Ark.) to John Boozman (R), 10 Seante races remaining interesting heading into the results: Alaska, California, Colorado, Florida, Illinois, Nevada, Pennsylvania, Washington, West Virginia and Wisconsin.
Of the incumbents, Senators Barbara Boxer (D-Calif.) -- facing Carly Fiorina (R) -- and Patty Murray (D-Wash.) -- facing Dino Rossi (R) -- are the most likely to hold onto their seats. Sen. Michael Bennet (D-Colo.)'s race against Ken Buck (R-Colo.) is expected to be exceptionally close, meanwhile, and Sens. Harry Reid (D-Nev.) and Russ Feingold (D-Wisc.) are the most likely Democratic incumbents -- other then Lincoln -- to lose, to Sharon Angle (R-Nev.) and Ron Johnson (R-Wisc.), respectively.
The open seats in Illinois -- between Alexi Giannoulos (D) and Rep. Mark Kirk (R) -- and Pennsylvania -- between Rep. Joe Sestak (D) and Pat Toomey (R) -- are expected to be close, with West Virginia Gov. Joe Manchin III (D) likely to succeed in winning the seat in his state.
Finally, the Republican is likely to win in both three-way races -- although both races could be interesting to watch. In Alaska, Joe Miller (D) is favored, though not by much, to beat Sen. Lisa Murkowski -- who is running a write-in campaign after losing the Republican primary -- and Scott McAdams (D). In Florida, Marco Rubio (R) is expected to beat Gov. Charlie Crist, running an independent bid with some Democratic support, and Kendrick Meek (D).
At the end of the night, it also is noteworthy that the winners of some of the Senate races -- Illinois, Delaware and West Virginia -- will take their seats as soon as is practicable after the election. This is important to recall as discussion of any lame-duck vote on the National Defense Authorization Act -- and the "Don't Ask, Don't Tell" repeal measure contained within it -- occurs.
In Colorado, however, the appointed senator's position after the election is less clear -- at least according to Buck's camp.
When asked what would be the result of a Buck victory Tuesday, Buck campaign spokesman Owen Loftus told Metro Weekly on Tuesday, "That's to be determined. Colorado law doesn't mention it, so I am sure there should be some discussion after the election. Historically, [if an appointed senator loses] they give up their seat and the governor appoints who won the election."
A message seeking comment was left with the Bennet campaign.
In Florida, Sen. George LeMieux (R-Fl.) is expected to serve out the remainer of his term.
We're now four hours until the polls start closing.
I'm "on" now for the next 12 hours (plus some?), providing Metro Weekly's readers with updates as there are noteworthy developments and adding in my analysis as it seems appropriate.
Every election is a bit of a gamble and will doubtless have surprises, but here are the 25 elections of interest to the LGBT community on which I am focused. Please let me know if you think I'm missing some (which, again, I doubtless am).
Senate: Alaska, California, Florida, Illinois, Nevada, Pennsylvania and Wisconsin - Read "The Senate: A Long Way From Sixty," today's Senate race Metro Weekly preview
House: Reps. Boccieri (D-Ohio), Bono Mack (R-Calif.), Cao (R-La.), Connolly (D-Va.), Djou (R-Hawaii), Frank (D-Mass.), Murphy (D-Pa.) and Perriello (D-Va.) and open seat held by Rep. Kennedy (D-R.I.) - Read "The House: Whither (Wither?) Pelosi?" today's House race Metro Weekly preview
Statewide: Governors races in California, Maryland, Minnesota, New Hampshire, New York and Rhode Island and the attorney general race in California
Issues: Iowa's Supreme Court justice retention and Ohio's Bowling Green referendum
With one judge dissenting, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a stay of the injunction of the military's "Don't Ask, Don't Tell" policy issued by U.S. District Judge Virginia Phillips, pending the outcome of the government's appeal of Log Cabin Republicans v. United States.
The immediate impact of the ruling, which was not unexpected by legal observers, means that -- absent congressional or executive action -- DADT will remain in effect through at least Spring 2011. The practical timeline for the appeal, however, means it actually would remain law much longer.
"In addition to the fact that this case raises 'serious legal questions,'" the court wrote, "there are three reasons that persuade us to grant a stay pending appeal."
The reasons included that "Acts of Congress are presumptively constitutional," that "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" and that "the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal."
In dissenting, Judge William Fletcher wrote, "I would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal."
The two judges who supported the stay -- Judges Diarmuid O'Scannlain and Stephen Trott -- responded, writing, "In our view, this 'carve out' is inconsistent with the stay itself and would be subject to the vagaries of the rule of unintended consequences."
R. Clarke Cooper, executive director of LCR, said in a statement, "Log Cabin Republicans is disappointed that 'Don't Ask, Don't Tell' will continue to burden our armed forces, undermine national security and limit the freedom of our men and women in uniform."
"Despite this temporary setback, Log Cabin remains confident that we will ultimately prevail on behalf of servicemembers' constitutional rights," he continued. "In the meantime, we urge President Obama to use his statutory stop-loss power to halt discharges under this discriminatory and wasteful policy."
The timeline for the appeal means that the briefing in the case will not be complete until March 2011, after which time an oral argument likely will be scheduled.
R. Clarke Cooper, executive director of the Log Cabin Republicans:
Log Cabin Republicans are expecting sweeping wins for our party on Tuesday, especially in the House of Representatives. From coast-to-coast, our members are currently coordinating with the Republican National Committee (RNC) and the National Republican Congressional Campaign Committee (NRCC) on races of note for us, such as phone banking for Charles Djou in Hawaii or in person canvasing for Nan Hayworth in New York.
Like many voters, Log Cabin Republicans are primarily focused on the state of the economy, market growth for employment and reduction of government spending. As to Republican lead legislation in 112th Congress benefiting the gay community, we can expect the new majority leadership to include tax equity as their initial pro-equality measure. A better economy and job growth is beneficial to all Americans regardless of one's sexual orientation.
Michael Cole, press secretary for the Human Rights Campaign:
When anti-equality forces controlled Congress for a decade (1994-2005), they stymied any progress on LGBT issues and made attacks on our community part of their governing agenda. Among their efforts were attempts to: pass a federal marriage amendment; strip courts of jurisdiction to hear LGBT rights claims; block DC’s domestic partner benefits and needle exchange programs; cut HIV/AIDS funding; increase failed abstinence-only programs; and block openly LGBT appointees. A Congress controlled by anti-equality Republican leaders could very well return to this playbook, and even go further by cutting Justice Department funds for enforcement of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act or trying to roll back Obama administration advances for LGBT people, like benefits for the partners of Foreign Service officers or hospital visitation protections.
Under a Republican Congress, key positions that control the fate of pro-LGBT legislation would be held by notorious anti-equality legislators. Potential House leaders Reps. John Boehner, Eric Cantor and Mike Pence have consistently scored a perfect zero since they came to Congress. Other leadership positions are critical as well.
Christopher Barron, chairman of the board of GOProud:
If Republicans govern as true conservatives and stay focused on the issues that got them elected then I believe life will be better for average LGBT Americans. A conservative majority in the House could and should push for social security reforms, healthcare reforms, tax reforms and other pieces of legislation that will improve the lives of LGBT people in this country.
If, however, Republicans do not govern as conservatives -- if they forget why they are getting elected, then we will hold them as accountable as we have held Nancy Pelosi and the big government crowd of liberals running Congress now. Let's be honest though, the bar for success for LGBT Americans has been set fairly low after four years of Democratic control that has produced lots of partisan rhetoric and very little in the way of tangible results.
Michael Mitchell, executive director of Stonewall Democrats:
It's not just Rep. John Boehner I'm concerned about; it's all the other Republicans that will be heading up committees. If our community thought it was hard to get LGBT legislation to a floor vote the last two years, I guarantee it will be much, much harder under the GOP, especially with extreme Tea Party members running some of the committees.
As one example, I'm very concerned what will happen in the committee that handles appropriations for the District of Columbia. Rep. Jason Chaffetz (UT-3), the ranking Republican on that committee and likely committee chair if the GOP takes the House, is a vociferous opponent of marriage equality and is certain to do whatever he can to overturn marriage for same-sex couples in the nation's capital.
Rea Carey, executive director of the National Gay and Lesbian Task Force:
Life will change for all Americans, including LGBT Americans, under this scenario. You can expect even greater gridlock on the Hill, meaning tougher challenges moving legislation, including LGBT rights legislation. We’ve all been frustrated with Speaker Pelosi and the Democrats dragging their feet on advancing equality for LGBT people. But, John Boehner is no Nancy Pelosi.
So, yes, it will be worse. Many people already view government as dysfunction on steroids. More political tug-o-war is bound to feed that sentiment even further. Also, divisiveness can lead to inaction. Is this good for America? We don't think so.
Robin McGehee, executive director, and Heather Cronk, managing director, of Get Equal:
Life for LGBT Americans should have changed the day that Barack Obama was sworn in. On the whole, it has not. With the Obama Administration continuing to defend "Don't Ask, Don't Tell" and the Defense of Marriage Act in the courts, we are still hunting for our fierce advocate and still living under the veil of discrimination. Obviously, if we lose the historic majority that we have enjoyed.
We will certainly not find fierce advocacy in a Speaker Boehner, so we will be forced to continue looking for a fierce advocate in President Obama. We hope that, should the White House lose its double-majority in the legislature, Election Day will be a wake-up call to act on behalf of LGBT Americans with the passion promised to us during the 2008 campaign. The targets will change, because power will shift, but our equality is a bi-partisan issue and all those who control our injustice should be held accountable, today and after this important election.
[Photo from the website of Rep. John Boehner (R-Ohio).]