The trial of former Army Lt. Dan Choi for failure to obey a lawful order by a police officer was halted abruptly mid-afternoon today when the government prosecutor told the court she intended to file a writ of mandamus (or writ of prohibition) against Mag. Judge John Facciola for allowing Choi's defense team to investigate and pursue a defense of vindictive prosecution by the U.S. government against Choi for actions related to his First Amendment rights.

As Metro Weekly reported earlier today, Facciola said he had found there was prima facie evidence for "vindictive prosecution," meaning enough evidence was presented to allow Choi's lawyers to pursue such a claim. This would allow Choi's lawyers to ask the government to provide more documents and evidence investigating whether higher-level officials advised their subordinates to try Choi in federal court rather than D.C. court and, if so, why. 

Choi was arrested on Nov. 15, 2010, along with 12 other activists when they chained themselves to the White House fence to protest the military's "Don't Ask, Don't Tell" policy, under which more than 14,000 other servicemembers were dismissed for being gay, lesbian or bisexual.  

Earlier this morning, in his second time on the stand, U.S. Park Police Lt. Robert LaChance testified he had received an e-mail from the Secret Service about the November 2010 protest that led to Choi's arrest. U.S. Park Police Capt. Phil Beck, another witness called by the defense, said that normally Secret Service does not get involved with protests in front of the White House.

Under oath, Beck testified that immediately prior to Choi's March 2010 arrest, he had instructed Choi and former Capt. James Pietrangelo to leave the White House sidewalk. Under cross-examination by Assistant U.S. Attorney Angela George, Beck said he believes the ledge on which the White House fence rests -- and where the two men were standing -- can be considered part of the sidewalk. He also said that since the men were not moving when they chained themselves to the fence, they were violating the regulation that allows protesters to demonstrate in front of the White House as long as they keep moving.

However, Beck also said he had spoken with someone from the D.C. Attorney General's Office who had told him the Attorney General did not consider the fence ledge to be part of the White House sidewalk. In July 2010, the D.C. Attorney General's Office dismissed charges against Choi and Pietrangelo for that reason.

When Beck was on the stand, he said he refrains from using "slanderous" terms such as "gay" or "homosexual," a statement that Choi's lawyers jumped on as soon as the court dismissed for a short mid-morning break.

"I believe that because Lt. Dan Choi is a homosexual war veteran dressed in full military regalia, he was unfortunately selected or singled out to be arrested and prosecuted," lead defense attorney Robert Feldman told reporters at the break. "To this day, the prosecution had to be literally forced to notice Lt. Choi and Capt. Pietrangelo's rank. Today, Capt. Phil Beck refused to acknowledge their rank. This fact, with his revelation that he believes 'gay' and 'homosexual' to be slanderous terms, shows, in my view, that this public servant is a homophobe, and, in my view, the record bears this out."

After Facciola said that he found the threshold of evidence met to allow Choi's lawyers to search for and provide evidence and witness testimony to mount a defense of vindictive prosecution, George asked for a short recess so she could confer with her superiors.  

After returning from a long lunch break, George and her assistant were joined by multiple DOJ employees, who sat in the viewing area, whispering among themselves. George then engaged in a back-and-forth with Judge Facciola and Choi's defense lawyers over whether the defense of selective prosecution, or "vindictive prosecution" should have been raised before the trial. The government previously filed a motion on Aug. 28 to limit the scope of subject matter in Choi's trial, meaning he would not be able to talk about "Don't Ask, Don't Tell," and to prevent Choi's lawyers from adopting the defenses of selective prosecution or impossibility.   

Facciola said that, while that would be true in a jury trial, he was wearing "two different hats," one looking at the evidence as if a juror, and the other looking to see that the defendant's constitutional rights were not violated. When asked by George what his intentions were, he said he was insulted by the question and refused to answer it.  

George then told the court that the government would be filing a writ seeking to stop the judge from allowing Choi's lawyers to pursue a "vindictive prosecution" defense. When Facciola asked if the government would be willing to dismiss the charges, George said no.

With that stalemate, Facciola halted the trial for 10 days to allow the government to file the writ. If one is filed, the U.S. Attorney's Office said it will go before U.S. District Court Chief Judge Royce Lamberth, who oversees the federal magistrate judges.  

Choi's lawyers objected to the delay, refusing to waive their right to a speedy trial and pointing out, that, if Choi is not released by Sept. 20, he will be unable to re-enlist in the military.  

"There's nothing about the judge's ruling that is inhibitive or prejudicial that prevents the government from continuing with its case," said Choi lawyer Norman Kent. "They are not only suppressing his right to free speech, now they're trying to inhibit his right to a fair trial."

When asked to comment on the case or the path forward for the government, George declined, pointing Metro Weekly to spokesman Bill Miller. Miller declined to comment on a currently open case.  

Once the writ is filed in District Court, Chief Judge Lamberth may decide to grant or deny it. If it is granted, Facciola can resume the case under instructions from Lamberth not to admit vindictive prosecution as a possible defense. If the writ is denied, the case can go back to Facciola.

As the court dismissed for the day, the assembled DOJ employees in the audience quickly left the courtroom and headed down the hallway. Outside the court, Feldman and Kent both said the government's refusal to go forward with the case and their attempt to preclude the Choi team from utilizing the vindictive prosecution defense shows they are worried.  

"The government is throwing a fourth quarter 'Hail Mary' pass that God is going to knock down," Kent said. "It's the most remarkable act of desperation that I've ever seen in 35 years of practice."

With reporting from court by John Riley.

The third day of the U.S. government's trial of former Lt. Dan Choi ended with a 10-day delay for the government to seek an order from a higher court stopping the decision made today by U.S. Magistrate Judge John Facciola to allow Choi's lawyers to argue the government singled out Choi for "vindictive prosecution."

Facciola said this morning that he had found there was prima facie evidence for "vindictive prosecution," meaning enough evidence was presented to allow Choi's lawyers to pursue such a claim. As a result, Choi's lawyers would be able to ask for more documents and evidence from the government in order to investigate if higher-level officials advised their subordinates to try Choi in federal court rather than D.C. court and, if so, why.

The government, represented in court by Assistant U.S. Attorney Angela George, told the court that it would be filing a writ of mandamus (or a writ of prohibition) against the judge -- seeking to stop the pursuit of the "vindictive prosecution" defense.

[CLARIFICATION: The U.S. Attorney's Office clarified that if the government follows through with the filing of the writ of mandamus, it will go before U.S. District Court Chief Judge Royce Lamberth, who will rule on it. Metro Weekly initially reported that such a writ would go to the U.S. Court of Appeals for the D.C. Circuit.]

George said that if such a defense was going to go forward it should have been raised pre-trial and asked for the judge's intentions.

Facciola responded bluntly, "I have made every effort to be as clear as humanly possible," noting that Choi engaged in similar behavior -- protesting with others against "Don't Ask, Don't Tell" by handcuffing himself to the White House fence -- in March, April and November. In March and April, the judge said, he was treated in a similar way -- but in November he was treated in an entirely different way.

The judge went on to say that he believed the prosecution was not selective in the traditional sense but rather was more subtle.

"It is impermissible," he told the courtroom, "for the U.S. Government to prosecute differently on the basis of the content of First Amendment speech."

A Department of Justice memorandum from its procedure manual for DOJ attorneys describes the standard in court "to establish a prima facie case of vindictive prosecution," stating, "[A] defendant must make a 'showing that charges of increased severity were filed because the accused exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness.'"

When Facciola asked if the governent wanted the judge to dismiss the charges, George said no.

[UPDATE @ 6:30P: For Metro Weekly's full report from today in court, see John Riley's "Lawyers Spar Over Defense as Choi Trial Grinds to Abrupt Halt."]

Former Army Lt. Dan Choi, the prominent "Don't Ask, Don't Tell" repeal advocate currently facing a charge of failure to obey an order by a police officer in federal court, told his lawyer, Robert J. Feldman, to reject a last-minute offer from the U.S. Attorney's Office to avoid prosecution, an e-mail between Feldman and Assistant U.S. Attorney Angela George reveals. 

According to an e-mail forwarded by Feldman to Metro Weekly, government prosecutors presented Choi with an offer for deferred prosecution on Friday evening, Aug. 26. Under the offer, the government would agree to dismiss the charge against Choi as long as he avoided arrest for four months. 

On Friday evening, Choi sent a message from his Twitter account saying, "My lead attorney, Robert J. Feldman, got a call today from the federal prosecutor's supervisor. They made us a new offer. We laughed."

Feldman said he received the offer at 4 p.m. orally, and asked for it in writing. He received the e-mail later that evening. 

"They demanded that I answer by 12 a.m.," Feldman said. "I said, 'I'll give you my answer after I speak to my client.' When I met with Dan, he immediately said, without a moment's hesitation, 'Capital "N," capital "O."''

Feldman said Choi wanted the charges to be dismissed and for the U.S. government to offer him an apology in open court on the record, so that other citizens would be able to know about it.

Feldman said, even more specifically, that Choi wouldn't accept an apology unless it was from Randy Myers, assistant solicitor general at the Department of Interior. It was Myers who advised U.S. Park Police to pursue the federal charge of failing to obey a lawful order, according to internal e-mails provided by the prosecution to the defense that were posted by Jane Hamsher -- a supporter of Choi's -- on Firedoglake on Monday, Aug. 29. Feldman said Choi also would accept an apology from a higher-level government official. 

Feldman said he would call on Myers to testify Wednesday morning, Aug. 31, to ask him why the government pursued federal charges against Choi rather than trying him in D.C. court, where the charges for his prior two protest-related arrests had been brought. 

The charges Choi faces now stem from his arrest on Nov. 15, 2010, after he and 12 other LGBT activists chained themselves to the White House fence to protest the military's "Don't Ask, Don't Tell" policy, which bans gay, lesbian and bisexual servicemembers from serving openly.

Read Metro Weekly's coverage of Choi's federal trial:

• Day One: Choi's Trial Ends Day One, With More to Come Tuesday
• Day Two: Choi Takes the Stand, Delivering Tense Testimony and Impassioned Speeches

Read the full email offer to Choi below the jump.

Additional reporting provided by Chris Geidner.

[Photo: Choi (Photo by Chris Geidner.)]

Former Army Lt. Dan Choi took the witness stand today during the second day of his federal trial for failing to obey a lawful order by a police officer, where he delivered several impassioned speeches protesting his prosecution in U.S. District Court for actions that, he believes, are protected under the First Amendment of the U.S. Constitution. 

Choi, who became a prominent advocate for the repeal of the military's "Don't Ask, Don't Tell" policy, was arrested by U.S. Park Police on Nov. 15, 2010, with 12 other LGBT activists after they chained themselves to the White House fence during a protest against the military’s “Don’t Ask, Don’t Tell” policy banning gays, lesbians and bisexuals from serving in the Armed Forces. Under the policy, which will be repealed on Sept. 20, more than 14,000 gay, lesbian and bisexual servicemembers, including Choi, were discharged.

In the trial that began on Monday, Aug. 29, Choi’s lawyer, Robert J. Feldman, has questioned why Choi is being tried in federal court instead of D.C. Superior Court. Choi was previously arrested in March 2010 and April 2010 for chaining himself to the White House fence under District charges that were later dismissed. 

After calling six witnesses on Monday, the prosecution completed making their arguments early this morning. Feldman then called Capt. James Pietrangelo, who was arrested with Choi during the March incident, to testify, followed by Choi. Both men testified for more than two hours apiece -- with Choi's testimony running longer than three hours. 

On the stand, Choi said the First Amendment provides for the right of people to petition the government for a redress of grievances, which also, he said, is a moral responsibility of patriotic Americans. Choi responded under questioning by Feldman that he believed his actions were a form of speech, and that the government did not have a right to censor them by arresting him. 

At times, Choi raised his voice and spoke in such a tone that he almost seemed close to shouting, especially when asked about his arrest. Under cross-examination by Assistant U.S. Attorney Angela George, he compared the various protests against “Don’t Ask, Don’t Tell” to the 1960 sit-in by students in Greensboro, N.C., at a Woolworth’s department store and said he was “insulted” by his prosecution on federal charges.

“The November 15th arrest is surprising in my mind,” Choi said, comparing the tactics used by police officers to remove him from the fence and transport him to the police wagon to procedures taught to soldiers in war. Choi said his left arm had been twisted and he could not feel his index finger for two weeks afterward, statements he said were reinforced by videos showing his arrest.

George used a YouTube video of Choi following his March 2010 arrest that was created by Metro Weekly to try and prove that Choi knew he was violating the law. In the video, seen here, Choi says of his arrest, “We’re going to do it again, and we’re going to keep doing it until the promises [of America] are manifest.” 

When George asked him about his first arrest, Choi said, “I believe it was a transformative moment when people realized that a complacent, comfortable approach, or attending fancy dinners in suits was no longer acceptable.”

Tempers flared when Feldman and George sparred over George’s refusal to call Choi and Pietrangelo by their ranks, referring to them as “Mister” because “they are not in the military anymore.” Magistrate Judge John Facciola resolved the issue by ordering George to address them by their highest achieved ranks.

Choi testified that he has 10 percent hearing loss from his time in Iraq, which would affect his ability to hear police over the din of the crowd in front of the White House on Nov. 15.

Choi also testified he had multiple run-ins with one particular detective with the U.S Park Police, who insulted him and his fellow protesters by stripping them of their rank insignia. Feldman said he planned to call the detective in question to testify on Wednesday morning.

“In the military, stripping someone’s rank is the biggest insult, because it makes somebody your inferior,” Choi said.

[Photo: Pietrangelo and Choi (Photo by Todd Franson.)]

Three weeks from today, the U.S. Armed Forces will begin living in a post-"Don't Ask, Don't Tell" world. The 60-day congressional review period will have passed since President Obama, Defense Secretary Leon Panetta and Joint Chiefs of Staff Chairman Adm. Mike Mullen certified on July 22 that the military was ready, under the terms of the Don't Ask, Don't Tell Repeal Act, to end the 1993 law banning out gay, lesbian and bisexual servicemembers.

Today, however, President Obama addressed the American Legion, the nation's largest veterans organization and an organization that has steadfastly opposed ending DADT. He did not, however, mention the policy or its coming end -- or the group's opposition to its end.

Speaking about efforts and successes of the military in the world after Sept. 11, 2001, Obama told the roughly 6,000 people attending the American Legion National Convention in Minneapolis, "Credit for these successes, this progress, belongs to all who have worn the uniform in these wars."

Later, he said, "As today's wars end, as our troops come home, we're reminded once more of our responsibilities to all who have served. For the bond between our forces and our citizens is a sacred trust. And for me and my administration, upholding that trust isn't just a matter of policy. It's not about politics. It's a moral obligation."

Yet, Servicemembers Legal Defense Network communications director Zeke Stokes tells Metro Weekly that "the American Legion is behind the curve on the issue and out of step with the American people and the views and recommendations of the nation's top military leaders" regarding DADT.

On July 7, the day after the U.S. Court of Appeals for the Ninth Circuit temporarily lifted the stay on U.S. District Court Judge Virginia Phillips's order banning the military from enforcing DADT, the American Legion issued a news release urging the Obama administration to appeal the decision.

With the news release noting that "[t]he American Legion has been voicing its concerns about the repeal of DADT for the last two years," American Legion National Commander Jimmie L. Foster, said in the release, "Micro-managing military policies by judicial fiat ignores the authority of our military leadership and circumvents the military's own Uniform Code of Military Justice. If we as a nation allow judges to institute military policy, we diminish the roles of the Secretary of Defense, the Joint Chiefs of Staff, Congress and the constitutionally mandated role of the nation's commander-in-chief. Simply put, the military's role is to fight and win our nation's wars. Judges lack the expertise on how to best do this."

Despite the American Legion's continued opposition to DADT repeal, the secretary of defense and chairman of the Joint Chiefs of Staff supported the DADT Repeal Act passed by Congress and signed into law by Obama in December 2010.

John Raughter, communications director at the American Legion, told Metro Weekly today following the president's speech that the group still has concerns about repeal implementation.

"The American Legion has some concerns about how the new policy will be implemented," he said. "We're particularly concerned about military chaplains and those who may hold some strong beliefs that they not be penalized for those beliefs."

Although some have raised questions about whether the American Legion allows membership by LGBT veterans, Raughter said the national policy of the American Legion is not to inquire about sexual orientation.

"The national headquarters of the American Legion does not ask the question. As far as the general criteria, if they're an honorably discharged wartime veteran and meet the criteria of the American Legion, they can join," he said. "We don't have any criteria [regarding sexual orientation]. There are self-identified gay posts. One is San Francisco."

Stokes pushed for more, telling Metro Weekly, "At SLDN, we urge the American Legion and its leadership to revisit positions and past statements on LGBT military service and work to create a welcoming and inclusive environment for gay and lesbian patriots who may want to be a part of the nation's largest veterans' service organization."

Those past statements include -- more than six months after the repeal bill's passage -- Foster's continued strong criticism of DADT repeal itself, as opposed to implementation questions discussed by Raughter today.

"The U.S. Army and U.S. Marine Corps have been bearing the brunt of the combat, yet last year both of their service chiefs testified in favor of keeping DADT," Foster said in the July release. "In fact, we agree with Marine Gen. James Amos who testified that the policy should not be based on 'a social thing. It's combat effectiveness.'"

Amos, in congressional hearings this year, however, has stated that repeal implementation was occurring with little or no problems, noting on April 7, "There's not been pushback ... or anxiety from the forces in the field."

Today, Foster introduced Obama, who finished speaking 34 minutes later without a mention of the DADT repeal set to take effect on Sept. 20.

UPDATE @ 2:55P: In response to a request for comment, White House spokesman Shin Inouye wrote to Metro Weekly, "The President recognizes that veterans come from all walks of life and from every background.  He was proud to sign the Don’t Ask, Don’t Tell Repeal Act into law and to certify that the conditions for repeal have been met. Come September 20th, our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian."

[Images: Top: Screen capture of President Obama addressing the American Legion National Convention. Bottom: Screen capture of American Legion National Commander Jimmie L. Foster, right, introducing President Obama to veterans following his speech to the American Legion National Convention.]

While former Lt. Dan Choi has already spent a day in federal court for the charge of failing to obey a lawful order by a police officer, things are moving at a pace that left Choi’s defense guessing that the bench trial may take three days. 

Choi, who has gained a national reputation as a prominent figure in the fight against the military’s “Don’t Ask, Don’t Tell” policy, was arrested with 12 other activists on Nov. 15, 2010, after the group chained themselves to the White House fence to protest the Obama administration’s lack of action on repealing the military policy. Under “Don’t Ask, Don’t Tell,” which was repealed in late December 2010, members of the military could be investigated and discharged on the suspicion that they were homosexuals. 

Choi’s lawyer, Robert Feldman, said he would try to move quickly tomorrow, but because the prosecution has not rested its case, and because of testimony that implicated other potential law enforcement officers who could be called as witnesses, the trial might spill over into a third day. 

The prosecutor representing the government, Angela George, called six witnesses, all U.S. Park Police officers, to testify against Choi. George argued that Choi could be found guilty of failing to obey a lawful order because his conduct could be considered disorderly, or because the group he was involved with did not have a permit to demonstrate on the sidewalk in front of the White House. At the close of the day, George said she had at least one more witness to call before finishing her arguments. 

Most of the prosecution’s witnesses testified that Choi and his fellow protesters failed to obey orders after U.S. Park Police gave them three warnings to “get off the sidewalk” or face arrest. 

On cross-examination, Feldman questioned whether Choi was technically on the sidewalk or a ledge when he was chained to the fence, thereby not disobeying police orders. He also questioned whether Choi’s conduct posed a threat to others, obstructed traffic or prevented emergency responders from doing their job, which would be required for his conduct to be considered “disorderly.” 

After being dismissed for the day, Choi and Feldman held a news conference outlining their major arguments against the charges.

First, they suggested that by bringing federal charges against Choi, the government was treating him differently from other people who have protested in front of the White House in previous years. Feldman referred to the testimony of one witness, a 22-year veteran of the Park police, who said Choi’s case was the first time he had been to federal court, rather than D.C. Superior Court, to testify against a protestor he had arrested.

Choi has been arrested three other times for similar actions, most recently during an environmental protest on Aug. 20. After that arrest, as well as one in March 2010, he was charged in D.C. Superior Court. 

Because he is being tried in federal court, if Choi is found guilty, he could be forced to pay a fine or spend up to six months in jail. 

Feldman said Choi’s defense would focus the fact that they argue that his behavior failed to meet the standard for disorderly conduct under U.S. Park Police regulations. He also said that, due to the chants of protestors, the sounds of the crowd watching the arrest, and a few other people on bullhorns, Choi, who also has hearing loss from his duty in Iraq, would have had difficulty hearing the police warnings. 

“This is the ‘Shuttlesworth’ of the 21st century,” Feldman told a small group that had gathered for the news conference, referring to the 1969 Supreme Court case Shuttlesworth v. Birmingham. In that case, an African-American minister was arrested for leading a civil rights march through Birmingham, Ala., because he had not obtained the proper permit. The Alabama Supreme Court had initially interpreted Birmingham city statutes and ruled that the arrest was legitimate because the march was a traffic obstruction, a decision that was overturned unanimously by the U.S. Supreme Court.

The Human Rights Campaign this afternoon announced that its president, Joe Solmonese, will be stepping down from his role at the end of his current contract, which ends March 31, 2012. The news was announced following a report Friday evening, Aug. 26, by Pam Spaulding of Pam's House Blend that Solmonese would be leaving HRC after more than six years at the helm -- news which was confirmed hours later by Metro Weekly.

HRC vice president of communications Fred Sainz tells Metro Weekly, "By giving seven months notice, Joe has ensured that the board can conduct a thorough and complete search process while he remains at the helm of the organization."

Although Spaulding reported that "a replacement executive director has been identified," Metro Weekly reported earlier that four sources familiar with the situation describe that portion of the report as inaccurate -- with one saying the process is just beginning and will not be rapid.

As to that, Sainz says -- and today's announcement shows -- that there is no replacement yet selected. Sainz, though, goes further, telling Metro Weekly, "There will not be a need for an interim head [because of the lead time Solmonese has given the board], nor has -- given that there is a full search process -- a permanent replacement been identified."

According to today's news release, the co-chairs of HRC's board of directors and the HRC Foundation's board of directors "announced the formation of a search committee to be co-chaired by board members Joni Madison of Hillsborough, N.C., and Dana Perlman of Los Angeles." Madison and Perlman are members of the HRC board of directors.

Madison is the chief operating officer at McKinney, an independent advertising agency based in Durham, North Carolina. According to her firm biography, she oversees creative services, human resources, information technology and office services. According to OpenSecrets.org, Madison is not a significant campaign donor although she donated $2,300 to Hillary Clinton in the Democratic presidential primary in 2008 and $2,300 to Kay Hagan (D) in the North Carolina U.S. Senate election in 2008.

Perlman, an attorney who graduated from USC School of Law, is a member of the National Finance Committee of the Obama for America campaign and a co-chair of the LGBT Leadership Council of the Democratic National Committee, in addition to his HRC leadership position, according to his law firm biography. According to OpenSecrets.org, Perlman contributed to more than 20 candidates in the past three election cycles (including the current one) -- all Democrats and primarily Senate candidates. In May, Perlman contributed $2,500 to the re-election campaign of President Barack Obama -- whose re-election HRC already has endorsed. Perlman also contributed $2,300 to Obama's 2008 campaign.

Madison and Perlman, along with HRC board of director co-chairs Timothy Downing and Rebecca Tillet and HRC Foundation board of director co-chairs Anne Fay and Andy Linsky, will be the key players in the search for Solmonese's successor.

Sainz noted, "It is the beginning of the process," adding that the six would be responsible for determining the process for moving forward -- with the selection of the search committee members and the decision to hire an executive search firm as their first order of business.

In the release announcing the news, Solmonese says, "HRC has never been stronger and after nearly seven years, this is the right moment for me to move on. As I explore new professional possibilities, I plan on continuing to pour my heart and soul into improving the lives of members of our community -- from battling proposed marriage amendments to creating more equitable workplaces to ensuring the President Obama is reelected for a second term."

Multiple sources familiar with the situation tell Metro Weekly that the decision came as a surprise to board members. The board was only formally told the news today in a conference call that originally had been scheduled for Aug. 29. Spaulding had reported that an announcement about Solmonese's departure was to be made public on Aug. 30.

Asked about the role that Cathy Woolard -- a consultant who has worked with HRC and advises the group currently on a number of projects, including its Workplace Project -- will play in the transition, Sainz said, "She's a consultant to HRC. There is no nexus between her and this search process."

Regarding the Solmonese's accomplishments, Fay said in the release, "Joe Solmonese is an outstanding leader. While we will miss his extraordinary leadership, we enter this next phase, thanks to Joe, in the best place the organization has ever been. Not only has our community secured historic victories, but our membership is larger and more active than at any time in our history, and our financial health is secure even in these difficult economic times."

Downing added, "From the repeal of 'Don't Ask, Don't Tell', to the recent passage of marriage equality in New York, Joe has made sure that HRC is an effective and strategic force for positive change. Over the course of his tenure, he's set the tone for delivering real reform that matters in peoples' everyday lives."

Although the passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009 and the passage of the Don't Ask, Don't Tell Repeal Act in 2010 will serve as highlights of his time leading the organization, Solmonese also was leading the group during one of the most divisive moments of its history -- its support in 2007 for a version of the Employment Non-Discrimination Act that was not inclusive of gender identity.

[FOLLOW-UP ARTICLE: HRC Announces Solmonese's Departure in 2012, Start of "Search Process" for Successor]

On Friday night, Aug. 26, Pam Spaulding at Pam's House Blend reported that Human Rights Campaign president Joe Solmonese will be stepping down in the coming months from his leadership role at the nation's largest LGBT political organization, a fact confirmed by Metro Weekly. His most recent contract expires in March 2012, and an informed source tells Metro Weekly that "a full candidate selection process will take place" to find his successor.

A second source familiar with the situation said that a board conference call that originally was scheduled for Aug. 29 was rescheduled on the evening of Aug. 26 to take place later today, Aug. 27. The change was made after Spaulding published her report, which stated that an announcement about his departure was to be made public on Aug. 30.

Solmonese has led the organization since March 2005, following the rocky and brief tenure of Cheryl Jacques, whose resignation in November 2004 led to the appointment by the board of Hilary Rosen as interim executive director and began the national search that resulted in Solmonese's hiring.

He helmed the organization during historic successes like passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009 and the passage of the Don't Ask, Don't Tell Repeal Act in 2010 but also during one of the most divisive moments of the organization's history -- its support in 2007 for a version of the Employment Non-Discrimination Act that was not inclusive of gender identity.

Although Spaulding reported that "a replacement executive director has been identified," four sources familiar with the situation describe that portion of the report as inaccurate -- with one saying the process is just beginning and will not be rapid.

The replacement process for Jacques was detailed, lengthy and public -- involving multiple news releases and announcements from HRC. The appointment of Rosen -- who had a long history with the organization -- as interim executive director was public, as were the plans for and make-up of the search committee, which was co-chaired by Gwen Baba of Los Angeles and Vic Basile of Baltimore, Md.

Spaulding refers to the person she reported was identified as Solmonese's replacement as "a paid consultant" who has worked with the organization. Metro Weekly has identified that consultant as Cathy Woolard, who most recently served on the senior leadership team at CARE, which describes itself as "a leading humanitarian organization fighting global poverty" and is based in Atlanta.

Although the sources say that no permanent replacement has been selected, none of the four sources were willing to say what, if any, role Woolard would play in the transition efforts at HRC.

Woolard has a history with HRC, having worked there for seven years, and in politics, having served as president of Atlanta City Council and been, per the Atlanta Journal-Constitution, the first out gay candidate to run for Congress in Georgia in 2004 -- when she lost in the primary to Cynthia McKinney. She was hired by HRC and Georgia Equality in 2006 to fight legislation banning gays and lesbians from adopting or serving as foster parents.

As for Solmonese, he is slated to appear this evening, Aug. 27, at HRC's 18th Annual Cleveland Gala Dinner and Auction -- where HRC Board of Directors co-chair Timothy Downing lives.

FINAL UPDATE: As of 9:30 p.m. tonight, Virginia state Del. Adam Ebbin (D-Arlington) -- the only out LGBT lawmaker in the Virginia legislature, who was profiled on Aug. 11 in Metro Weekly -- bested his two challengers in his bid to win the Democratic nomination to run for the state Senate seat currently held by state Sen. Patsy Ticer (D-Alexandria).

Ebbin secured the Democratic nomination -- winning (with one precinct not reporting) by just more than 300 votes out of more than 11,000 cast. Close behind Ebbin was Alexandria City Council member K. Rob Krupicka. Arlington School Board member Elizabeth Garvey came in third.

The district runs south from Arlington through parts of Alexandria and into Fairfax County down to Fort Belvoir. Despite today's earthquake, voting continued throughout the day today in Virginia and the polls closed at 7 p.m.

* * *

ORIGINAL POST:

As of 8:30 p.m. tonight, Virginia state Del. Adam Ebbin (D-Arlington) -- the only out LGBT lawmaker in the Virginia legislature -- was leading his two challengers in his bid to win the Democratic nomination to run for the state Senate seat currently held by state Sen. Patsy Ticer (D-Alexandria). Despite today's earthquake, voting continued throughout the day today in Virginia and the polls closed at 7 p.m.

Close behind Ebbin is Alexandria City Council member K. Rob Krupicka, who received the endorsement of The Washington Post, with Arlington School Board member Elizabeth Garvey coming in third.

The district runs south from Arlington through parts of Alexandria and into Fairfax County down to Fort Belvoir. Ebbin received a plurality of the votes in Arlington County, while Krupicka -- unsurprisingly -- secured a plurality of the votes in Alexandria City. Still outstanding as of 8:30 p.m. are most of the votes in the district from Fairfax County.

UPDATE @ 8:50P: Less than 250 votes separate Ebbin and Krupicka with more than 68 percent of the precincts reporting. All of the remaining precincts come from Fairfax County, where Ebbin currently leads with six of the 23 precincts reporting.

UPDATE @ 9:05P: With more than 80 percent of the precincts reporting, Ebbin is still up -- by 239 votes. Ten precincts remain.

Northern Virginia Democratic primary voters will go to the polls on Tuesday to decide whether they will nominate Virginia Del. Adam Ebbin (D-Arlington), Virginia's only out gay politician, for the 30th Senate District seat being vacated by retiring state Sen. Patsy Ticer (D-Alexandria).

Ebbin -- profiled on Aug. 11 in Metro Weekly -- is running in a three-way Democratic primary against Alexandria City Council member K. Rob Krupicka and Arlington School Board member Elizabeth Garvey. The district runs south from Arlington through parts of Alexandria and into Fairfax County down to Fort Belvoir. Polls in Virginia will be open from 6 a.m. to 7 p.m. Tuesday.

Ebbin has received endorsements from a host of liberal-leaning organizations including the Virginia League of Conservation Voters, the Virginia National Organization for Women, NARAL Pro-Choice Virginia, the Arlington and Fairfax County Associations of Professional Firefighters and Paramedics, the Virginia Partisans Gay and Lesbian Democratic Club, Equality Virginia, the Gay and Lesbian Victory Fund and The Falls Church News Press.

Ebbin has also received endorsements from his Northern Virginia colleagues in the House of Delegates, including Dels. Mark Sickles, Scott Surovell, David Bulova, Eileen Filler-Corn, Mark Keam, Kaye Kory, Ken Plum and Vivian Watts of Fairfax, Charniele Herring of Alexandria and Bob Brink and Patrick Hope of Arlington.

Ebbin has also been endorsed by state Sens. John Edwards (D-Roanoke) and Chap Petersen (D-Fairfax) and former 11th District U.S. Rep. Leslie Byrne (D-Fairfax).

U.S. Rep. Jim Moran (D-Arlington) has stayed neutral in the race, while U.S. Rep. Gerald Connolly (D-Fairfax), one of Byrne's successors, has endorsed Krupicka.

Although The Washington Post endorsed Krupicka, they also praised Ebbin, saying:

"Both Mr. Ebbin and Mr. Krupicka are well respected, substantive and effective, and either one would make an excellent senator."

Ebbin did receive the endorsement of progressive blogger and executive director of the Accountability Now PAC Ben Tribbett, who writes for the Virginia political blog Not Larry Sabato. Tribbett writes:

"...This [2003] was a time when conservative Delegates (including some Democrats) wouldn't hesitate to compare the GLBT community to rapists, bestiality or polygamists on the House floor when these issues would come up.

Along came Adam's election and a funny thing happened.  Virtually every member (with a couple exceptions like Dick Black and Bob Marshall) didn't want to say those things anymore.  Once they had to say it to a colleague's face who could stand up and personally challenge them, many Delegates changed their behavior.  In addition, the vote tally's [sic] on these issues started to change, as many Democrats in the caucus didn't want to cast votes against the GLBT community with Adam sitting there.

In fact, noticing the change and how out of touch he was looking, even Mark Warner turned it around.  Before Adam had even finished his first term in the House, Warner amended his first executive order and added sexual orientation as a protected class- something Tim Kaine continued and it stayed as the law of the Commonwealth until Bob McDonnell's election last year.

Elections are about the future and not the past.  So why Adam now?...because of what it means to the debate in Richmond to have one legislator who is openly gay- something we would lose if Adam doesn't win this election.  There are so many critical issues coming up in this area, as Virginia crafts policy to deal with out of state gay marriages that relocate here and become divorces, sometimes with children involved or begins grappling with the repeal of the Marshall-Newman amendment.  If you care about those issues, you don't want to return Richmond to a time where no legislator was able to personalize the debate the way Adam has."

[Photo: Ebbin (Photo by Todd Franson.)]

Today, LifeSiteNews.com's Jeremy Kryn reported that GOP presidential candidate Herman Cain told a group of bloggers on a conference call held Aug. 16 that President Obama's decision to stop defending Section 3 of the Defense of Marriage Act is "an impeachable offense."

He also, according to the report, said that any impeachment effort based upon Obama's DOMA decision will not "get off the ground" because Republicans do not control the U.S. Senate -- despite the fact that the House, which is controlled by Republicans, would have to act first before the Senate could consider impeachment.

The report quotes Cain as saying, "The president is supposed to uphold the laws of this nation … and to tell the Department of Justice not to uphold the Defense of Marriage Act is a breach of his oath."

Human Rights Campaign spokesman Michael Cole-Schwartz, whose group endorsed Obama's re-election earlier this year, told Metro Weekly, "Herman Cain is veering way out of the mainstream in an obvious attempt to curry favor with conservative primary voters. Presidents of both parties -- including Ronald Reagan and George W. Bush -- determined that certain statutes were so blatantly unconstitutional that a defense was not possible.

"Mr. Cain should brush up on his history before making such sweeping generalizations."

Log Cabin Republicans executive director R. Clarke Cooper was less direct, but nonetheless said that DOMA is unconstitutional and that Cain's focus on the issue was misplaced.

"In November 2012, Americans will have the opportunity to vote Obama out of office for a host of reasons, primarly jobs, the economy and his failed leadership. On DOMA, the legal process is moving forward and this unconstitutional policy will be struck down," Cooper wrote to Metro Weekly. "For the Republican party to unseat Obama next year, Cain and the other candidates must remain battle focused on bread and butter issues."

Cain's campaign did not respond to a Metro Weekly request for further explanation of the comments.

Back on July 1, the Department of Justice took a big step in defining what its Feb. 23 decision that the federal definition of marriage found in Section 3 of the Defense of Marriage Act is unconstitutional would look like. In Karen Golinski's case seeking equal health benefits for her wife, DOJ argued that the case should not be tossed out of court and should be allowed to proceed.

On Aug. 19, DOJ went a step further, telling a judge in the Southern District of New York that Edith Windsor -- who is seeking a refund of the more than $350,000 estate tax bill that she had to pay because her marriage to her deceased wife, Thea Spyer, was not recognized by the federal government -- should be granted that refund because DOMA's federal definition of marriage is unconstitutional.

In both cases, the Bipartisan Legal Advisory Group -- led by the House Republican leadership -- has taken steps to join the cases and defend DOMA in court after DOJ's February decision. In both, BLAG filed motions to dismiss the claims.

In Windsor's case, DOJ additionally was responding to a request by Windsor's lawyers that her case be decided on the law with no need for a trial and that Windsor -- represented by the American Civil Liberties Union and Paul, Weiss, Rifkind, Wharton & Garrison LLP -- accordingly be granted the refund she is seeking.

In concluding its brief filed on Friday in Windsor's case, DOJ -- led by Assistant Attorney General Tony West and signed by DOJ senior trial counsel Jean Lin -- argues, "Section 3 of DOMA fails heightened scrutiny, and this Court should deny the motions to dismiss Plaintiff's constitutional claim and grant Plaintiff's motion for summary judgment."

This is the first time the government stated affirmatively in court that a lawsuit requiring that Section 3 of DOMA be struck down as unconstitutional should succeed.

Besides that ultimate resolution urged due to the procedural posture of the case, the brief filed Friday is in almost all respects the same as that filed in Golinski's case.

Among the differences are the one that led to the initial Feb. 23 DOJ decision, which specifically referenced Windsor's case and a case, Pedersen v. Office of Personnel Management, filed by Gay & Lesbian Advocates & Defenders in federal court in Connecticut.

Under the Equal Protection Clause of the 14th Amendment -- applied to the federal government through the Fifth Amendment -- all laws that classify people into groups receive a level of scrutiny: rational basis, which is the lowest form of scrutiny; intermediate scrutiny; or strict scrutiny.

The factors used in deciding what level of scrutiny should apply include showing evidence of a "history of discrimination," that the group exhibits "immutable" characteristics, that the group's members are "minorities with limited political power" and that the characteristic "bears no relation to" the group's "ability to perform or contribute to society."

The U.S. Supreme Court has not made a determination about the level of scrutiny to apply to sexual orientation classifications, even in the two cases in which it struck down anti-LGBT laws -- Romer v. Evans and Lawrence v. Texas. On Feb. 23, though, Attorney General Eric Holder detailed in a six-page letter his and President Barack Obama's determination that some level of heightened scrutiny should apply.

In many of the federal appellate circuits across the country, the courts have ruled at some point on the level of scrutiny to be applied to classifications based on sexual orientation. In Friday's filing, however, DOJ notes -- as Holder had noted on Feb. 23 -- "The Second Circuit has not ruled on the appropriate level of scrutiny for sexual orientation classifications." The Second Circuit includes New York, where Windsor filed her case, and Connecticut, where the GLAD Pedersen case was filed.

DOJ's Aug. 19 brief then lays out its case for heightened scrutiny to apply to sexual orientation classifications, arguing that "careful consideration of the factors the Supreme Court has identified as relevant to the inquiry demonstrates that classifications based on sexual orientation should be subject to heightened scrutiny."

The other difference between the briefs filed by DOJ in Golinski's case and Winsor's case -- which could be related to the lack of a standard in the Second Circuit -- is that a footnote that was in the Golinski filing was not present in the brief filed in Windsor's case.

In its Golinski brief, DOJ noted, "Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this court holds that rational basis is the appropriate standard, as the government has previously has stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard."

That language is gone from DOJ's Windsor brief.

In addition to DOJ's filing, Windsor's lawyers also filed a response to BLAG, arguing in part that DOMA should be found unconstitutional -- even should the court decide that rational basis applies.

The court had set a timeline earlier this year for exchange of evidence among the parties and for the briefing that took another step forward on Friday. BLAG's reply is due by Sept. 2.

READ:

• DOJ's filing: WindsorVUS-USResponse.pdf
• Windsor's filing: WindsorVUS-WindsorResponse.pdf

[Photo: Windsor]

Attorney Lavi Soloway writes, "San Francisco Immigration Judge Marilyn Teeter has granted [Immigrations and Customs Enforcement] Motion to Administratively Close Deportation of gay Venezuelan Alex Benshimol, ending the nightmare faced by Alex and his American husband, Doug Gentry."

Soloway -- the co-founder of Stop the Deportations and lawyer representing Benshimol -- notes that the decision was dated August 11 and received today.

In July, Teeter had put off a decision on the case until 2013, but had given the U.S. government 60 days to decide whether it was going to continue with Benshimol's deportation.

Soloway writes, "According to the documents received today, ICE moved quickly to notify the court by the beginning of August requesting that the case be dropped. A few days later, the Judge granted the government's motion and closed proceedings."

This is at least the second time ICE has taken such an action in a case. Earlier this year, in a case involving another Venezuelan, Henry Velandia, and his husband, Josh Vandiver, the ICE office in Newark, N.J., took a similar action, noting that Velandia's case "is not an enforcement priority at this time."

The move appears to be in line with the plan laid out earlier this week by Department of Homeland Security Secretary Janet Napolitano for focusing on the "highest priority" deportation cases.

[Photo: Murphy (left) and Benshimol (Photo courtesy of Stop the Deportations.).]

Sujey Pando, who is from Mexico and seeking asylum in the United States after facing a series of abuses and rape in Mexico, also married her wife, Violeta Pando, in Iowa this past year. Today, they had a hearing in immigration court in Denver, which was supposed to be a final decision on Pando's asylum claim but instead resulted in Immigration Judge Mimi Tsankov scheduling a new hearing -- to consider a marriage-based application for a green card -- for January 2012.

After leaving court today, their lawyer, Lavi Soloway of Stop the Deportations, emailed Metro Weekly the news, writing, "Today, Immigration Judge Mimi Tsankov halted the deportation of Sujey Pando and scheduled a new hearing to consider an application based on her marriage to her U.S. citizen wife, Violeta Pando. Because today's hearing was intended to be a final decision day on Sujey's deportation, the judge's action was unusual; she spent 45 minutes methodically considering the procedural posture of the case."

Soloway went on to say that Tsankov "set aside the intended purpose of the hearing," citing developments, including Attorney General Eric Holder's rare intervention in a case in May -- Matter of Dorman -- that addressed similar issues. Soloway stated that Tsankov "noted that the issues involved in this case existed in a context that was 'fluid' and 'in a state of flux.'"

Soloway also wrote that Department of Homeland Security Secretary Napolitano's announcement on Aug. 18  the DHS and the Department of Justice were engaging in a review of all pending deportation cases for possible closure, including those involving "same-sex couples," had "an impact on how to proceed."

Following the passage of California's S.B. 48 -- the FAIR Education Act (bill text) -- opponents immediately launched a referendum campaign aimed at stopping the law, which would amend the Education Code to include social sciences instruction on the contributions of lesbian, gay, bisexual and transgender (LGBT) people, as well as those of persons with disabilities and members of other cultural groups. This bill would also prohibit discriminatory instruction and discriminatory materials from being adopted by the State Board of Education.

Now, Pastor Jack Hibbs of Calvary Chapel Chino Hills has launched an ad for the referendum organization aimed at recruiting "pastors and church leaders" in the fight to "stop S.B. 48."

"If we do not stop [S.B. 48] by referendum," he says on the video, "this will be the indoctrination of our children, pastor, on our watch. I'm asking you to join me to make this commitment to defend our children in the state of California.

He then encourages people to download, print out and sign the petition to hold a referendum on the law.

Hibbs concludes: "Understand, this is not a political issue. This is a righteousness issue that has been taken from us by a rogue government that took it away from our opportunity that the voice of the California people might say so."

Despite the muddled message, the online ad is prompting action from pro-LGBT groups.

Both the Courage Campaign and Equality California put out requests today for donations to fight the referendum campaign, with new EQCA executive director Roland Palencia focusing on the link to marriage equality in an email to supporters, writing, "Some of us may not immediately make the connection between our fight for marriage and the FAIR Education Act. Here's the link: in every single campaign, no matter what the issue—anti-discrimination law, marriage equality, safe schools or hate crimes—our opponents have again and again used cruel stereotypes about LGBT people being a harm to kids and families as a weapon against us. Winning the fight on this core issue will remove one of the last major barriers standing between us and full, lasting equality—including marriage equality."

Watch the ad:

In an email to supporters, former Sen. Russ Feingold (D-Wisc.) announced that he would not be seeking to run for the state's other Senate seat, which is being vacated by Sen. Harb Kohl (D-Wisc.). The decision, one group backing her run, says the news makes Rep. Tammy Baldwin (D-Wisc.) -- the only out lesbian in Congress -- the front-runner for the Democratic nomination, with Rep. Ron Kind (D-Wisc.) also looking at the race.

The Gay and Lesbian Victory Fund, which works to help elect out LGBT candidates for office, has been pushing Baldwin to run.

Denis Dison, Victory Fund vice president of communications, told Metro Weekly today, "The Victory Fund is still preparing for a competitive primary and general election, but this news makes Tammy Baldwin the clear front runner for the Democratic nomination. We expect her to make a final decision after Labor Day, but the environment now could not be more encouraging. We look forward to helping her make history."

In Feingold's statement, posted at his Progressives United PAC, he wrote that he is "thoroughly enjoying the life of a private citizen."

He continued: "I know that progressives are eager to reverse some of the outrageous policies being pursued by corporate interests at both the state and federal levels. I am also well aware that I have a very strong standing in the polls should I choose to run again for the U.S. Senate or in a recall election for governor."

But, he wrote, "While I may seek elective office again someday, I have decided not to run for public office during 2012."

Writing about his focus on reversing the impact of the Supreme Court's decision in Citizens United, Feingold wrote that he will continue to focus on reversing the tide on unlimited corporate contributions.

"In many ways, this is the overriding political struggle of our time. It is more important than whether or when one person runs for office again. That is why, at this time, I am devoting my primary political energy to this cause and this organization."

The news opens the race up for Baldwin, but nonetheless could put Baldwin -- according to polling released on Aug. 18 -- in an uphill battle for the Senate seat, should she become the Democratic nominee. Public Policy Polling's latest numbers on the race show Baldwin losing to either former Gov. Tommy Thompson (R-Wisc.) or Mark Neumann (R-Wisc.), the former congressman who lost the gubernatorial nomination to now-Gov. Scott Walker (R-Wisc.) in 2010.

Since Jan. 1, Baldwin has raised more than $600,000 for her congressional campaign account, which could be used toward re-election to the House or a run for the Senate. In this year, Baldwin -- who has represented Madison in Congress since first winning election to the House in 1998 -- has received 56 donations contributing at least $2,500 -- the maximum individual donation for a primary. All such contributions came in June, well after Kohl had announced his retirement in mid-May.

Among those contributing $2,500 are several names well known in the LGBT community, including Bruce Bastian, major donor to LGBT causes from Utah; Steve Elmendorf, head of Elmendorf Strategies in D.C.; David Geffen, movie producer; Mitchell Gold, Faith in America founder; James Hormel, former ambassador to Luxembourg; Hilary Rosen, partner in the political communications firm of SKDKnickerbocker; and Winnie Stachelberg, vice president at the Center for American Progress.

Also in June, the Victory Fund contributed $5,000 to Baldwin, the Friends of Jared Polis committee contributed $2,000 and the Human Rights Campaign contributed $599 for an "in-kind" contribution of "online advocacy and fundraising." HRC earlier, on May 11, had contributed $,1000 to Baldwin -- two days before Kohl announced his retirement.

HRC vice president of communications Fred Sainz told Metro Weekly, "It appears that Tammy will now be able to run for the U.S. Senate. We stand ready to endorse her not simply because of her sexual orientation but rather because she will undoutedly represent all of the citizens of her state in an exemplary fashion."

Kind has similar donation levels to Baldwin in 2011, raising a little more than $590,000 -- although an overwhelming majority of his contributions came from other political committees, whereas almost all of Baldwin's donations came from individuals.

UPDATE @ 1:21P: Baldwin's campaign spokesman released the following statement from Baldwin this afternoon:

I thank Russ Feingold for his incredible service to this state and look forward to his continued leadership in the progressive community.  As I have said since Senator Herb Kohl announced his plans to retire in May, I am seriously exploring a race for U.S. Senate in 2012.  I will have an announcement in the coming weeks.

So, donors and supporters will continue to await news on whether the representative from the 2nd district of Wisconsin will enter the race.

Following her straw poll win in Ames, Iowa, Minnesota Rep. Michele Bachmann (R) sat down with CNN's Candy Crowley, who asked if the Republican candidate for president would reinstate the "Don't Ask, Don't Tell" military policy if elected president.

"The 'Don't Ask, Don't Tell' policy has worked very well," Bachmann replied. "It worked very well, and I would be in consultation with our commanders, but I think, yes, I probably would."

Although Congress passed legislation to repeal the statutory provision in the U.S. Code – 10 U.S.C. 654 – that mandated no open gay, lesbian or bisexual service, several LGBT leaders took note of Bachmann's comment – pointing out that the military had a policy of no gay service whatsoever prior to the passage of DADT in 1993.

In other words, because the 1993 law has no requirement that gay, lesbian and bisexual servicemembers can serve openly, Bachmann effectively could reinstate the policy.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, talked with The New York Times about the possibility.

James Dao reported, "Sarvis said that if a Republican president were to take that path, it would essentially return the military to the pre-don't ask era, when gays were banned under regulation."

Aaron Belkin, director of the Palm Center, said in a statement, "Congresswoman Bachmann has a consistent approach to fixing the problem of gay people, first with so-called 'reparative therapy' and now with the reinstatement of the military's ban on openly gay service.

"She has stated that as President, she would turn back the clock to prevent gay and lesbian troops from serving honestly, ignoring the conclusions of senior military leaders, the Pentagon Working Group and foreign forces, all of whom find inclusive policy to be no big deal. Under Representative Bachmann's proposal, the U.S. Armed Forces would become the first nation in the world to undo the repeal of a gay ban."

Dao noted, however, "Sarvis said he believed that reinstating the ban would be difficult, in large part because senior military leaders prefer continuity in policy and would not have much appetite for reversing course so quickly."

Belkin, along with a Palm Center colleague, Diane Mazur, went a step further in an op-ed published at The Huffington Post on Aug 16, writing, "There were always two ways to end 'don't ask, don't tell' (DADT). Congress could repeal the law, or the courts could find it unconstitutional."

Discussing the Log Cabin Republicans v. United States case, which is on appeal before the U.S. Court of Appeals for the Ninth Circuit, they note, "Congress's DADT Repeal Act does nothing to ensure equal treatment of gay and lesbian troops." Because of that, they argue, "Until that question is definitely resolved, Log Cabin should not be dismissed as moot" -- or, tossed out by the court because the repeal has happened.

That question, as well as the overall trial-court ruling striking down DADT as unconstitutional, will be considered by the Ninth Circuit on Sept. 1 – just less than three weeks before the DADT statute will be repealed.

In an effort to reach out to LGBT organization leaders who have expressed concerns about safety and police decisions in recent months, Metropolitan Police Department Chief Cathy Lanier is meeting this afternoon with leaders of several LGBT organizations at MPD's headquarters. 

The meeting, at 300 Indiana Ave. NW, was scheduled following the July 6 hate crimes hearing, which was organized by Councilmember Phil Mendelson's (D-At Large) Committee on the Judiciary. 

Among those attending are Gay and Lesbian Activists Alliance vice president Rick Rosendall, Gays and Lesbians Opposing Violence's Chris Farris and A.J. Singletary, DC Trans Coalition's Ruby Corado and Jason Terry, Transgender Health Empowerment's Earline Budd and Brian Watson and Rainbow Response Coalition's June Crenshaw and Shauna Fecher -- as well as community members Alison Gardner, Nick McCoy and Isaiah Toney.

Since coming on board as police chief, Lanier's leadership has been criticized by some members of the local LGBT community for altering the functionality of the Gay and Lesbian Liaison Unit by disbanding the centralized Dupont Circle location and expanding services to all seven police districts. 

Lanier's handling of the GLLU has also come under question by D.C. elected officials, including Councilmember Jim Graham (D-Ward 1), who is gay.

Councilmember Jim Graham (D-Ward 1) made an appearance and agreed with those calling for the GLLU to be strengthened.

"Now we have a GLLU and I don't even know if it's worthy of the name," Graham said. "What am I hearing today is that the gay and lesbian community and others are coming together and saying this isn't right.

"The message today to the chief ... is you've got to find a better way of engaging our community. And I have to ask again and again: Chief, why did you dismantle this?"

Lanier maintained, during that meeting, that dismantling the Dupont Circle-based core of GLLU, as it initially existed, and instead training a larger number of officers in GLLU methods is more effective.

But members of the local LGBT community have also expressed concern that the LGBT sensitivity and GLLU training for MPD officers is voluntary, not mandatory.

Problems with the relationship between Lanier and the local LGBT took another negative turn when Lashai Mclean, a 23-year-old transgender woman, was gunned down on July 20. In reporting the incident, MPD used Mclean's birth-given male name, as well as a mug shot of Mclean in s flier asking for information about suspects. 

Brian Watson, program director at Transgender Health Empowerment (THE), was frustrated that the police did not collaborate with the organization in seeking information about the victim as they had in the past when the GLLU was under the leadership of Sgt. Brett Parson. 

"After all of this sensitivity training, it doesn't make any sense," Watson told Metro Weekly on July 23, hours before Mclean's vigil.

"I mean, the DC Trans Coalition is going in and doing trainings with every MPD recruit class that comes through, but obviously there's still a lot that we need to do. This is not about the officers who are on the street level. This must be more upper management and the communications department of the Police Department. I'm definitely looking forward to talking with the chief and the GLLU about how we move forward from here."

[Photo: Lanier]

Over at SCOTUSblog -- an indespensible resource for those who follow the work of the U.S. Supreme Court -- Kali Borkoski today announced an online symposium -- a collection of articles -- on the issue of same-sex marriage and the high court. The series of posts are to focus on California's Proposition 8 and the Defense of Marriage Act and will continue for the next two weeks. They are to feature a wide array of some of the leading voices in favor of and against same-sex marriage litigation and marriage equality more broadly, from famed law professors Erwin Chemerinsky and Laurence Tribe to the National Organization for Marriage's Maggie Gallagher.

With an opening entry from Yale Law School professor William Eskridge, the series is off to a quick start.

Eskridge writes about "[h]ow ought the U.S. Supreme Court handle the appeal in Perry v. Schwarzenegger once the case is ripe for appeal" for the symposium, urging that the court take the most narrow path possible, either (1) turning down the case altogether, (2) deciding the case on a technical ground, or (3) deciding the case on the most narrow constitutional ground possible.

As for the first option, Eskridge -- a renowned scholar on LGBT issues and the author of The Case for Same-Sex Marriage back in 1996 -- writes:

The Court may deny review of any Ninth Circuit opinion in Perry, and it would be wise to exercise that discretion if the Ninth Circuit issues a narrow ruling.  There are many state court decisions adjudicating the state constitutionality of the marriage exclusion; it is high time the federal courts debated the issue openly, and that federal court debate ought not be foreshortened by the Supreme Court.

As to the second, he writes:

[I]f the Supreme Court were to take Perry, it would be wise to limit the Court’s grant of review to a procedural issue, such as the constitutional standing of Proposition 8 supporters to appeal Judge [Vaughn] Walker’s [trial-court] judgment, without the participation of the state and local officials who were the named defendants in the case.

Finally, as to the third, he writes:

There is a narrow alternative to the broad fundamental right to marry sought by the plaintiffs in Perry, and to Judge Walker’s more prudent view that the voters’ revocation of marriage equality violated the rational basis test.  A narrower ruling on the merits would rest upon Romer v. Evans (1996), where the Court invalidated Colorado’s Amendment 2, an anti-gay state constitutional initiative, because it violated core equal protection precepts. ...

Proposition 8 fits the facts of Romer snugly.  No state but California has recognized lesbian and gay couples’ right to civil marriage as “fundamental,” and then revoked that fundamental right through a popular initiative.

Check out the whole post and be sure to follow the whole symposium.

Kudos to SCOTUSblog for pulling this together.

Over the weekend, Texas Gov. Rick Perry entered the Republican race for president; former Minnesota Gov. Tim Pawlenty dropped out of the 2012 race; Minnesota Rep. Michele Bachmann barely defeated Texas Rep. Ron Paul to win the Iowa straw poll in Ames, Iowa; and former Massachusetts Gov. Mitt Romney sat back, staying out of Iowa for the weekend.

From the view of the Wall Street Journal's conservative editorial board, none of the front-runners are optimal. In today's editorial, it asks if Bachmann "has the experience and judgment to sit in the Oval Office," questions whether Perry's "muscular religiosity" will "play well at a time when the economy has eclipsed culture as the main voter concern" and calls Romney "a weak front-runner who ... gives little evidence that he has convictions beyond faith in his own technocratic expertise."

Strong in its opposition to Obama, the board concludes by stating, "Republicans and independents are desperate to find a candidate who can appeal across the party's disparate factions and offer a vision of how to constrain a runaway government and revive America's once-great private economy. If the current field isn't up to that, perhaps someone still off the field will step in and run. Now would be the time."

When it comes to LGBT issues, the leading GOP candidates face similar skepticism. Think Progress put together the "Top 5 Examples of Perry's Anti-Gay Agenda" shortly after his entry into the race on Aug. 13. Towleroad covered Bachmann's response to LGBT-related questioning in her appearance on Meet the Press on Aug. 14. And, Romney -- considered more moderate on LGBT issues than Bachmann or Perry -- nonetheless spent time at the GOP debate this past week supporting the Federal Marriage Amendment (FMA).

The Human Rights Campaign -- which already endorsed President Obama's re-election -- hit the ground running this morning, sending out an email to supporters warning of "Anti-LGBT McCarthyism." The reference was to a plank in a recent National Organization for Marriage pledge signed by Bachmann and Romney that commits them to "appoint[ing] a presidential commission to investigate harassment of traditional marriage supporters" -- in addition to supporting the FMA and defending DOMA.

The email, signed by HRC president Joe Solmonese, states, "This witch hunt commission would usher in a despicable era of anti-equality McCarthyism – and it's a sign of just how radical the right has become."

At Log Cabin Republicans, though, deputy executive director Christian Berle laid out the reality of the focus in Ames, telling Metro Weekly, "The shakeup after this weekend is indicative of the long and tumultuous contest for the Republican nomination. The Ames Straw Poll, like the Iowa caucuses, reflect a cross-section of socially conservative voters and with their results helped advance certain candidates."

He also noted, though, "The results also showed a significant achievement for the libertarian-minded Ron Paul, whose candidacy has underscored the need to focus on fiscal issues first and foremost, himself a vote against the Federal Marriage Amendment and in favor of repeal of 'Don't Ask, Don't Tell.'"

For GOProud's executive director, Jimmy LaSalvia, the focus remains the economy and growth of government. Asked to size up the GOP field following this past weekend's developments, LaSalvia told Metro Weekly, "I think the top tier of Republican candidates will continue to focus on the issues that most conservatives, and most Americans, care about -- namely jobs, the economy and the size of government. This weekend's Iowa Straw Poll results once again confirm the influence of the Tea Party and its limited government message in this primary process." 

In terms of the support of GOProud and gay conservatives more broadly might give to any of the candidates, LaSalvia wrote, "We are confident that at the end of this process, we will have a Republican nominee that gay conservatives can support and -- most importantly -- one who can defeat Barack Obama."

Taking a swipe at HRC, Berle pointed out former Utah Gov. Jon Huntsman's continued support for civil unions and noted, "While this weekend's results could be seen to shift the balance in favor of certain candidates and ideologies, it is important to look at the 15 months ahead in the nominating process, and is unwise for any organization to pre-judge the entire Republican field or to jump at endorsing the President so early."

[Image: Leading GOP candidates' web sites (Image illustration by Yusef Najafi.)]

Today, the National LGBT Bar Association, the official affiliate of the American Bar Association, announced its 2011 list of the "Best LGBT Lawyers Under 40." Of the 40 honorees -- who include lawyers from across the country -- one-quarter practice in the District, more than in any other city.

The local lawyers recognized include three government lawyers: David W. Knight, trial attorney in the Disability Rights Section of the Civil Rights Division at the Department of Justice; Benjamin C. Mizer, senior counsel in the Office of Legal Counsel at the Department of Justice; and Matthew Murphy, acting director of the Office of Equal Opportunity at the Equal Employment Opportunity Commission.

Two lawyers who work at nonprofit organizations also are represented: Deborah Golden, staff attorney with the DC Prisoners' Project since it became a part of the Washington Lawyers' Committee for Civil Rights and Urban Affairs, and Lisa Mottet, director of the Transgender Civil Rights Project at the National Gay & Lesbian Task Force.

Also honored are five area lawyers who work in private practice: Paul A. Ainsworth, associate at Covington & Burling's D.C. office; Tico Almeida, associate at Sanford Wittels & Heisler's D.C. office; Mark W. Brennan, associate at Hogan Lovells's D.C. office; Eva N. Juncker, partner at Zavos Juncker Law Group; and Brian J. Winterfeldt, partner at Steptoe & Johnson's D.C. office.

The National LGBT Bar Association, per its website, is a national association of lawyers, judges and other legal professionals, law students, activists, and affiliates of lesbian, gay, bisexual, transgender legal organizations. The LGBT Bar promotes justice in and through the legal profession for the LGBT community in all its diversity.

To see a list of all the honorees, click here.

With White House Deputy Director of Public Engagement Brian Bond, who has served as the White House's liaison to the LGBT community, leaving for the Democratic National Committee to serve as director of constituency outreach later this month, the question was: Who would replace Bond?

The answer, it turns out, is three different answers.

Politico's Mike Allen reported this morning that Stephanie Valencia will take over the deputy director role. Valencia, who has been associate director for Latino and immigration outreach in the White House Office of Public Engagement since January 2009.

As Bond did, Valencia "will oversee operations and programs to engage communities and leaders across the country." Politico also notes, "Prior to working at the White House, Stephanie worked for then-Rep. Rahm Emanuel and Rep. John Larson in the House Democratic Caucus."

Additionally, White House spokesman Shin Inouye told Metro Weekly that Raul Alvillar will be, in an "interim" role, serving as the "point of contact for the LGBT community for OPE." Alvillar is associate director for public engagement at the Office of the Vice President and will continue to work out of the vice president's office.

Alvillar previously worked as congressional relations officer in the Department of Housing and Urban Development and had worked on the Obama campaign.

Finally, Inouye said that a permanent LGBT liaison announcement would be coming this fall. "Following Brian's departure from the White House to his new position at the DNC, we will have a full time liaison to the LGBT community in the Office of Public Engagement in October," Inouye wrote.

Richard Socarides, who served as President Bill Clinton's liaison to the gay and lesbian community in the '90s, has been a critic of President Barack Obama at times in the past two years -- but also has praised developments that he has seen as positive from the president this year.

Metro Weekly asked Socarides for his thoughts on Bond's departure and the staff shuffling going on currently.

He replied, writing, "One of the biggest mistakes we made with Obama as a community at the outset was not insisting on a full-time, senior ranking White House policy official to be responsible for our issues. We see that the explanation given at the time -- that they were not organizing along issue silos -- was just not true.

"It is not too late now, in fact now is the perfect opportunity, with the opening created by Brian Bond's departure to the Democratic Party. I am hoping that those with close ties to the White House are insisting on it. This is what an early endorsement should get you. A leader from your own ranks high up on the inside.

"Now is the moment to do this. It should be obvious to everyone that our issues are at the forefront of a national dialogue, from New York to California and many places in between. We should not have to depend on the good graces of overwhelmed White House aides -- straight allies for sure -- but overwhelmed with the financial crisis and two wars and job creation -- to carry our priorities.

"We need and deserve one of our own with rank, stature and gravitas to represent us at the table. (And for those who thought the debate over whether we deserved a place at the table was over, this is the reality of Washington today)."

[Photos: Bond, Alvillar, Valencia (Photos courtesy of the White House.)]

Members of the local LGBT community, including the Gay and Lesbian Activists Alliance (GLAA), Transgender Health Empowerent and the DC Trans Coalition, met with Mayor Vince Gray on Thursday, Aug. 4, to talk about transgender employment issues in the District.

In a blog post on the GLAA's web site, Rick Rosendall, Vice President for Political Affairs at GLAA, summarizes Gray's three commitment to improve conditions, as a conclusion of the meeting:

1. Expand cultural diversity training across District Government with a focus on LGBT and specifically transgender cultural competency. The D.C. Department of Human Resources (DHR), the Office of Human Rights (OHR), and the Office of GLBT Affairs will develop a training module for all District government employees by October 1.

2. The Department of Employment Services (DOES) will pilot a transitional employment program targeting transgender community members, to include six weeks of training coupled with subsidized paid employment.

3. DHR will explore the legal issues around use of a ranking factor (requiring agency staff expertise on transgender issues) and implementing a policy similar to the federal Schedule A (which gives agencies authority to make non-competitive appointments of persons with disabilities).

In email to Metro Weekly, Rosendall said he was "encouraged" by the meeting.

"I was encouraged just by the fact that Mayor Gray gave us a meeting that we never got with his predecessor," he stated.

"But this wasn't just window-dressing; the Mayor made it clear to the D.C. agency officials whom he brought to the meeting that he wanted action items, otherwise we would just be having a conversation and nothing would come of it. The activists he met with will be following up with Jeff Richardson of the GLBT Affairs Office. We do not know how the legal questions will come out. But we have allies in the Gray administration and they are making an effort. Anti-trans discrimination is entrenched in our society and it will take a long time to overcome. These efforts are just a start."

[Photo: Rick Rosendall, Jeri Hughes, Denise Leclair, and Ruby Corado. (Photo courtesy of Leclair.)]

Today, GOProud announced that Ann Coulter would be serving as the honorary chair of the group's advisory council. The move comes as the latest in a back-and-forth skirmish between GOProud and Log Cabin Republicans, which this past week criticized a recent Coulter TV appearance.

Coulter, in an interview with Joy Behar, started the latest skirmish between the two groups when she commented on questions about the "reparative therapy" practiced at Marcus Bachmann's psychology clinic, saying, "There are some people who aren't -- maybe they weren't really gay to begin with, maybe they were molested as children. There are people who go that way. For liberals who think that every sort of polymorphous perversity is normal, who can't imagine that you can go from being gay to being straight, it happens. It does happen."

Christopher Barron, GOProud board chairman, told Metro Weekly that nothing in Coulter's statement suggested that some people are not born gay and pointed to a C-SPAN appearance in which Coulter talks about people being born gay and said, "If you're born gay, why would you be a liberal? Are you born liberal?"

Barron also said in a news release announcing Coulter's new role, "Ann Coulter is a brilliant and fearless leader of the conservative movement, we are honored to have her as part of GOProud's leadership. Ann helped put our organization on the map. Politics is full of the meek, the compromising and the apologists -- Ann, like GOProud, is the exact opposite of all of those things. We need more Ann Coulters."

In the Behar interview, when asked about New York's passage of marriage equality, Coulter -- who headlined GOProud's "Homocon" event in New York City in 2010 -- said that if she were to say something good about it, it would be that "[m]aybe they will shut up about it," adding, "I wan't 'Don't Ask, Don't Tell' for all of society."

When Behar pushed her on that point, Coulter said that she did support "Don't Ask, Don't Tell," noting, "I not only don't want open gays in the military, I don't want open girls in the military. That's the issue I told the conservative gays to take up."

Asked who she wants in the military, Coulter said, "Heterosexual men. The same sort of men who can be firemen."

Of the end of DADT, which comes Sept. 20, she said, "I don't think this is going to help military preparedness. It's a fad among liberals."

Barron, talking with Metro Weekly today, said of Coulter's position on DADT repeal, "We disagree. We're not the pod people. Everybody doesn't have to agree with each other 100 percent."

Coulter's appearance, however, brought LCR out, with LCR executive director Clarke Cooper issuing a statement saying, "Ann Coulter is not a serious part of the conservative movement -- her positions are a throwback and do more harm than anything else. Her remarks endorsing the widely outdated and profoundly harmful idea of 'reparative therapy,' alleging that one can 'pray the gay away,' are not only demeaning to gays and lesbians, but are offensive to all people of faith."

He added, "While her position on this matter is off base, it is exacerbated by her claim that the armed forces should bring back 'Don't Ask, Don't Tell,' a failed policy which impedes military readiness. Servicemembers who put their lives on the line deserve respect, not such clownish behavior."

LCR headlined the news release as a "statement on comedienne Ann Coulter."

Today, though, GOProud focused in its release on Coulter's past, noting that she received a law degree from the University of Michigan Law School, where she was an editor of the Michigan Law Review. The release also noted that Coulter clerked for the Honorable Pasco Bowman II of the U.S. Court of Appeals for the Eighth Circuit and was an attorney in the Department of Justice Honors Program.

Coulter joins Margaret Hoover, Grover Norquist, Andrew Breitbart, Liz Mair, Chuck Muth, Lisa De Pasquale, Christian Josi, Roger Stone, Andrew Langer, Kathryn Serkes and Bob Carlstrom on the GOProud advisory council.

In the GOProud statement, Coulter said of her new role, "I am honored to serve in this capacity on GOProud's Advisory Council, and look forward to being the Queen of fabulous."

In 1713 -- nearly 300 years ago -- Chambers Russell was born. A founder of the town of Lincoln, Massachusetts, Russell built a two-story Georgian mansion house on the property about 1740 -- still decades before the colonies would declare their independence from Great Britain. Russell, a lawyer and judge, died before the new nation would be formed, but the property was passed on, first to his son and then to his son's nephew, Charles Russell Codman.

The property, now known as the Codman Estate, still exists. Having been expanded over time by the Codmans and given as a gift by Dorothy Codman to Historic New England in 1969, the house today is open for tours and the property is used for events.

This past weekend, I was at the Codman Estate, having the honor to serve as the best man for my friend Scott Galea at his wedding. I've known Scott since we met at American University as undergrads, and the wedding was as beautiful as anything I've ever seen in person.

His now-husband, Hansa Bergwall, comes from the area, and their families and friends met at the estate on August 5 to celebrate their marriage. The New York couple decided, even after the passage of marriage equality in the Empire State, to wed in Massachusetts. The first state to achieve marriage equality, it seemed appropriate to marry there, especially given Hansa's roots in the state.

The ceremony, which took place in the more than 100-year-old Italianate garden on the property, began with the grooms walking down the aisle on each side of the garden's water lily-filled reflecting pool -- and ended with one teary-eyed groom and one groom with an unending smile.

For me, it was a little of both. Although I've been in several wedding parties, this was the first time that I had the opportunity to be a part of a same-sex couple's wedding. It was -- particularly settled in such a location as we were -- both ordinary and extraordinary to be celebrating their wedding in that place.

It is easy to get caught up -- and I often do -- in the legal cases and political debates surrounding same-sex marriage. Tracking those cases and debates is important. But, as people like Freedom to Marry's Evan Wolfson, Gay & Lesbian Advocates & Defenders's Mary Bonauto and others constantly remind anyone who will listen, the change we are seeing is, at the end of this personal and societal evolution, about the couples themselves and their families. 

As we celebrated their marriage throughout the evening, the spirit of the night was steeped both in the history of the estate and the history of the moment in which we live. It is a history that began with a judge born three centuries ago -- and a progression to a time when two wonderful men could, thanks to judges born centuries later, have their marriage recognized by the state and celebrated by their friends and family.

[Photo: Hansa Bergwall and Scott Galea, following their wedding on Aug. 5, 2011. (Photo by Chris Geidner.)]

Equality Maryland announced today that is seeking applicants for the organization's executive director position. While Lynne Bowman has served as the interim executive director of Equality Maryland since May of this year, Patrick Wojahn, board chair of the Equality Maryland Foundation, says as of yesterday no one has applied for the position. 

On its web site, Equality Maryland states that it is looking for a "dynamic individual with a passion for achieving full legal equality" for LGBT Marylanders:

The Executive Director reports jointly to the Board of Directors of Equality Maryland Foundation and Equality Maryland Inc. The Chairs of both Boards supervise the Executive Director. Additionally, the Executive Director is a member of the Executive Committee of both Boards and attends all Board meetings.

The Executive Director is responsible for managing the daily operation of Equality Maryland and implementing the vision, strategic goals and objectives of the organization. The Executive Director supports the Chairs and respective Boards, and manages and directs the staff of the organization to accomplish the mission and achieve agreed upon results.

Most importantly, the Executive Director represents Equality Maryland to the community, policymakers, donors and others to advocate for its mission and programs. Expect significant in-state travel and occasional out-of-state travel, including work on evenings and weekends.

According to Wojahn, Bowman has committed to staying on board as the interim executive director on a month-to-month basis until a permanent one is found. While Wojahn says board members have a few candidates they would like to speak to in mind, he would not disclose who those people are just yet. 

With the governor Martin O'Malley's (D) recent declaration that he would support marriage legislation in Maryland in 2012, and the formation of Marylanders for Marriage, a coalition of organizations working to secure those laws, Wojahn says he remains optimistic. 

"I'm very optimistic moving into this next year," he says. "We're going to be in a good position to pass marriage legislation and the gender identity anti-discrimination act, and we will win real victories for the LGBT community." 

For more information about the executive director position, visit equalitymaryland.org.

The House Bipartisan Legal Advisory Group (BLAG) has been defending the Defense of Marriage Act (DOMA) in court since President Barack Obama and Attorney General Eric Holder announced on Feb. 23 that the Department of Justice would no longer defend Section 3 of the law – the federal definition of marriage.

In one of those cases – Edith Windsor's challenge to the law because of the $350,000 estate tax bill she was ordered to pay following the death of her wife, Thea Spyer – BLAG on Aug. 1 filed its motion to dismiss the case, arguing that Windsor does not have a legal claim to make because DOMA is constitutional. Additionally, BLAG – led by the House Republican leadership – filed its opposition to her motion for summary judgment, which Windsor's lawyers had filed in late June.

In the dueling filings, BLAG's lawyers – led by attorney Paul Clement of Bancroft PLLC – argue that same-sex marriages are not a fundamental right and that sexual orientation classifications should not be subjected to any heightened scrutiny. Windsor's lawyers, on the other hand, argue that marriage is a fundamental right and that sexual orientation classifications should be subjected to heightened scrutiny. Although the argument seems semantic, the answers to these questions could have a significant impact on whether DOMA stands.

Under the 14th Amendment – applied to the federal government through the Fifth Amendment – all laws that affect fundamental rights or classify people into groups receive a level of scrutiny: rational basis, which is the lowest form of scrutiny; intermediate scrutiny; or strict scrutiny.

The U.S. Supreme Court has not made a determination about the level of scrutiny to apply to sexual orientation classifications, even in the two cases in which it struck down anti-LGBT laws – Romer v. Evans and Lawrence v. Texas. If a fundamental right is impacted, that too triggers heightened scrutiny.

If heightened scrutiny is found to apply, then the law will be found to be unconstitutional unless – depending on the level of review – the government shows an important or compelling interest is advanced by the law. If the lowest level of scrutiny applies, then the law is presumed to be constitutional and the court must only find a legitimate interest to be advanced.

In the filings, BLAG gives several interests advanced, including that "caution" was appropriate in the face of "a proposed novel redefinition of the foundational social institution." BLAG argues, "As an empirical matter, the long-term social consequences of granting legal recognition to same-sex relationships remain unknown."

Later, BLAG goes on to argue, "Whether or not same-sex marriages are as beneficial to society as traditional marriage in other respects, it would have been reasonable for Congress to have been concerned that defining same-sex relationships as 'marriages,' despite the fact that they necessarily cannot result in children without assistance—and are (and particularly in 1996, were) less likely to involve children—would weaken society's understanding of the importance of marriage for children."

In her earlier filing, Windsor argued, far from being dismissed, her case should succeed without the need for a trial because she is right on the legal arguments and there are no factual disputes. Her lawyers – led by Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP – note that "under the Constitution, discriminatory classifications cannot merely perpetuate past stereotypes or enforce prior discrimination."

Windsor's filing continued: "Thus, the fact that lesbians and gay men have historically been denied access to marriage cannot provide the necessary independent basis for the federal government's disregard of existing state-approved marriages of same-sex couples today."

Additional filings – including by the Department of Justice – could still be filed in coming weeks before the briefing will be completed in the case about a month from now.

* * *

Additionally, a dispute in the case that arose during the discovery, or evidence-gathering, portion of the case was recently resolved.

In a letter filed with the court on July 18, Windsor's lead attorney, Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, noted to Magistrate Judge James Francis that BLAG chose to intervene in the case and that "the obligations that come with party status include good faith participation in and compliance with the discovery process."

The disputre surrounded requests asking for BLAG to admit what Windsor's lawyers claimed were certain facts -- such as that "lesbians and gay men have experienced a history of unequal treatment in the United States because of their sexual orientation" -- and to respond to certain questions -- including what interests that BLAG will be arguing are advanced by DOMA.

In an order from Francis filed on July 28, he granted some of the requests and denied others -- ordering BLAG to explain what interests it will be arguing are advanced by DOMA and to admit whether, "at the time of her death, Thea Spyer had been married to a man instead of a woman ... her estate would have qualified for the estate tax marital deduction." He denied, however, the request that BLAG several other questions, which he characterized as "seek[ing] admissions about sweeping historical and sociological phenomena." He concluded that "[r]equests for admission are ill-suited to such complex issues."

Of the granted requests, though, the plaintiff did get BLAG's lawyers to state on Aug. 1:

Defendant admits that Plaintiff has submitted documents that, if accurate, establish the eligibility of Spyer's estate for the estate tax marital deduction and that the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.

But for Windsor and Spyer's sex, in other words, BLAG agrees that the estate tax marital deduction would have applied.

* * *

READ:

• Judge Francis's order: Francis Order.pdf
• BLAG's admission: Windsor Admissions Responses (Supplemental) 7-29.pdf
• BLAG's claimed DOMA interests: Windsor Interrogatory Responses (Supplemental).pdf
• Windsor's Motion for Summary Judgment: MotionSJ.pdf
• BLAG's Opposition to the Motion for Summary Judgment: OpptoMotforSummJ.pdf
• BLAG's Motion to Dismiss: MTDMemo with Exhibits.pdf