ACLU accuses Texas’ Goose Creek school district of building a cyber-dam to block LGBT content

A while back we told you about the American Civil Liberties Union’s effort to get school districts in Texas and several other states to stop illegally filtering LGBT content on the Web. And we’d like to think that maybe, just maybe, a student in Baytown’s Goose Creek school district saw our post and contacted the ACLU.

Either way, the Goose Creek district now stands accused of maintaining a cyber-dam to shield its little goslings from the gay stuff. According to MyFox Houston, district officials say they received a public information request from the ACLU Foundation of Texas on April 7 about their web filtering practices. But you’ll never guess the Google search that led to the ACLU’s investigation:

ACLU’s outcry stems from a Goose Creek Memorial High student’s research for a news story about Chik-Fil-A donating to anti-gay organizations. The senior’s search hit a bump when several sites appearing on Google News were blocked by the district.

The ACLU says the district is violating free speech rights as well as the Equal Access Act. By failing to remain “viewpoint neutral,” the ACLU claims the district is denying helpful support information for gay or transgendered students.

—  John Wright

Supreme Court rules in favor of Westboro Baptist

Phelps pickets from a July 2010 Dallas appearance

By an 8-1 decision, the Supreme Court upheld the right of Westboro Baptist Church to picket military funerals, according to Associated Press.

From the decision:

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”

The father of a Marine killed in Iraq in 2006 sued the Phelps clan for picketing at the funeral. He called the group’s actions targeted harassment and invasion of privacy. The purpose of the picketing was to purposely inflict pain.

In a jury trial, the father was awarded $11 million that was reduced to $5 million by the judge. On appeal, the ruling was overturned and the judgment thrown out. This ruling upholds the appeals court.

Chief Justice John Roberts wrote the opinion. The dissenting vote came from Justice Samuel Alito.

A group of 21 news organizations filed a brief siding with the Phelps group based on preserving free speech rights.

—  David Taffet

Former colleagues testify for lesbian flight nurse discharged from Air Force under DADT

GENE JOHNSON | Associated Press

TACOMA, Washington — A lesbian flight nurse discharged from the Air Force under the government’s “don’t ask, don’t tell” policy for gays in the military was an excellent officer whose sexuality never caused a problem in her unit, former colleagues told a federal judge Monday, Sept. 13.

Former Maj. Margaret Witt is seeking reinstatement to the Air Force Reserve in a closely watched case that “don’t ask, don’t tell” critics hope will lead to a second major legal victory this month. The trial began just days after a federal judge in California declared the policy unconstitutional.

Witt was suspended in 2004 and honorably discharged after the Air Force received a complaint from a civilian about her sexuality.

The first witness in her case, retired Master Sgt. James Schaffer, testified that Witt was exceedingly competent and said her dismissal was so unfair, it was part of the reason he retired in 2007.

“It was a rather dishonorable act on the part of the Air Force,” Schaffer said. “It should not be about what you are, but who you are.”

Witt’s case has already led to one crucial ruling — a 2008 holding by a 9th U.S. Circuit Court of Appeals panel that the military cannot discharge people under “don’t ask, don’t tell” unless it shows that the firing is necessary to further military goals such as unit cohesion. The case has returned to federal court in Tacoma for U.S. District Judge Ronald B. Leighton to determine whether Witt’s dismissal met that standard.

The 1993 law prohibits the military from asking about the sexual orientation of service members, but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity. Last week, U.S. District Judge Virginia Phillips in Los Angeles determined the policy was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

While Phillips’ ruling has no effect on the legal issues in Witt’s case, gay rights activists believe a victory — and Witt’s reinstatement — could help build momentum for repealing the policy. The Senate could soon take up a House-approved defense bill that includes a repeal.

Witt sat in the courtroom Monday amid her supporters, including Lt. Col. Victor Fehrenbach, a fighter pilot from Idaho who is fighting his own discharge by the U.S. Air Force.

Peter Phipps, a Justice Department lawyer representing the Air Force, insisted during his opening statement that Witt’s conduct necessitated her firing. That included a long-term relationship with a civilian woman, an affair with a married woman and two earlier relationships with fellow servicewomen, Witt acknowledged in a May deposition.

A 2004 e-mail from the married woman’s husband to the Air Force chief of staff, Gen. John Jumper, prompted the investigation into Witt’s sexuality. Witt remains in a relationship with that woman, whose husband divorced her.

“By committing adultery, she compromised her integrity and her ability to lead,” Phipps said. “Plaintiff set an example of a disregard for Air Force policies.”

Witt’s discharge therefore eliminated a risk to unit cohesion and morale, he added. He said the support she has received from colleagues is irrelevant; the law’s constitutionality doesn’t depend on the views of her friends.

Furthermore, the military cannot handle discipline by referendum, because that would lead to uneven application of the law, Phipps said.

Witt acknowledged in her deposition the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

Former colleagues who testified Monday disagreed that Witt’s firing accomplished anything — especially because it came during a shortage of flight nurses.

“We were at war at the time,” said Lt. Col. Vincent Oda. “It was the loss of an able flight nurse is what that was.”

The court also heard from other service members discharged under “don’t ask, don’t tell.” One, former Army Sgt. Darren Manzella, said that when his superiors first investigated him, he gave them pictures of himself and his boyfriend kissing to make it clear he didn’t want to hide anything.

The result of that initial inquiry? “No evidence” of homosexuality, Manzella said. He served almost two more years before the Army kicked him out in 2008.

One of Witt’s lawyers, Sarah Dunne of the American Civil Liberties Union of Washington state, said in her opening statement that the McChord Air Force Base aeromedical evacuation squadron with which Witt served welcomed gays and lesbians, and it was her dismissal — not her orientation — that caused problems in the unit.

Schaffer, the retired master sergeant, said he went on hundreds of flights with Witt, including several missions to evacuate ill or wounded Americans from the Middle East and Afghanistan. Witt received a standing ovation when she showed up at his retirement party in 2007, he said.

Dunne said Witt received glowing performance reviews that attested to her nursing ability and leadership, even one that was written in 2005, after her suspension.

Her suspension came less than a year before she would have earned her full pension.

—  John Wright

Lesbian seeks reinstatement to Air Force; DADT opponents hope for another big legal victory

GENE JOHNSON | Associated Press

SEATTLE — Opponents of the “don’t ask, don’t tell” policy against gays serving in the military were hoping for another major legal victory as a federal trial began Monday, Sept. 13 over whether to reinstate a lesbian flight nurse discharged from the Air Force Reserve.

The trial comes just days after a federal judge in California declared “don’t ask, don’t tell” an unconstitutional violation of the due process and free speech rights of gays and lesbians. While the ruling does not affect the legal issues in the case of former Maj. Margaret Witt, gay rights activists believe a victory — and her reinstatement — could help build momentum for repealing the policy.

“There’s already political momentum to do something to repeal this unfair statute,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles who is on Witt’s legal team. “Judicial opinions from multiple jurisdictions saying there’s a constitutional problem with this ought to encourage Congress to act more swiftly.”

Witt was a member of a squadron based at McChord Air Force Base near Tacoma when she was suspended in 2004 and honorably discharged. She challenged the constitutionality of her dismissal, and a federal appeals court panel ruled in 2008 that the military could not discharge service members for being gay unless it proved that the firing furthered military readiness.

The case was sent back to U.S. District Court in Tacoma for Judge Robert Leighton to determine whether Witt’s firing met that standard. Several of Witt’s former colleagues are expected to testify that she was an excellent nurse, and it was her dismissal — not her sexual orientation — that caused morale problems in the unit.

Justice Department lawyers representing the Air Force note that the case has put them in the position of defending a law neither the president nor the department itself believes is good policy. Defense Secretary Robert Gates also favors repealing the 1993 law, which prohibits the military from asking about the sexual orientation of service members but allows the discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.

Government lawyers nevertheless insist Witt’s firing was justified — and that the panel of the 9th U.S. Circuit Court of Appeals did not know the extent of her conduct when it sided with her in 2008. That conduct included a long-term relationship with a civilian woman, an affair with a woman who was married at the time and two earlier relationships with fellow servicewomen, Witt acknowledged in a deposition in May.

It was a 2004 e-mail from the husband of the married woman to the Air Force chief of staff, Gen. John Jumper, that prompted the investigation into Witt’s sexuality.

Witt acknowledged the extramarital affair was not consistent with good “officership.” She also said she told two members of her unit about her orientation — forcing them to choose between loyalty to Witt and Air Force policy, the Air Force argues.

For those reasons, it says, Witt’s firing did further military goals, even if 19 current and former members of Witt’s unit have submitted declarations saying they had no problem serving with her.

“Those co-workers are not military commanders, and the military cannot operate by a unit referendum process in which disciplinary policies and outcomes are determined by the individual opinions of a few unit members,” Justice Department attorney Peter J. Phipps wrote in a court filing.

The Air Force also says Witt can’t be reinstated because she no longer meets Air Force nursing requirements, something Witt’s attorneys dispute.

Witt’s attorneys, led by the American Civil Liberties Union of Washington, say that it is the Air Force’s burden to prove that her reinstatement would be a detriment to unit cohesion. And, ACLU attorney Sarah Dunne says, the Air Force has provided no such evidence.

Gen. Charles E. Stenner Jr., an expert witness for the government, said in a deposition that he didn’t know if Witt’s reinstatement would negatively affect military functions, and the current commander of Witt’s unit, Col. Janette Moore-Harbert, acknowledged having no evidence to that effect.

The trial is expected to last seven days. Meanwhile, the Senate could take up a defense bill passed by the House that includes a provision to end “don’t ask, don’t tell.”

—  John Wright

Groups step up pressure as clock winds down on DADT repeal

DAVID CRARY  |  Associated Press

NEW YORK — Elated by a major court victory, gay-rights activists are stepping up pressure on Congress to repeal the military’s “don’t ask, don’t tell” policy this month. They want to avoid potentially lengthy appeals and fear their chances for a legislative fix will fade after Election Day.

The House voted in May to repeal the 17-year-old policy banning openly gay service members. Many majority Democrats in the Senate want to take up the matter in the remaining four weeks before the pre-election recess, but face opposition from Republican leaders.

National gay-rights groups, fearing possible Democratic losses on Nov. 2, urged their supporters Friday, Sept. 10 to flood senators’ offices with phone calls and e-mails asking that the Senate vote on the measure during the week of Sept. 20.

“If we don’t speak up now, our window for repeal could close,” said Joe Solmonese, president of the Human Rights Campaign.

Supporters of repeal hope senators heed the ruling issued Thursday in Los Angeles by U.S. District Judge Virginia Phillips, who said ‘don’t ask, don’t tell’ was an unconstitutional violation of the due process and free speech rights of gays and lesbians.

The policy has a “direct and deleterious effect” on the military by hurting recruitment efforts during wartime and requiring the discharge of service members who have critical skills and training, she said.

The Log Cabin Republicans, a Republican gay-rights organization, sued the federal government in 2004 to stop the policy, and Phillips said she would draft an order within a week doing just that. The U.S. Department of Justice hasn’t yet said whether it will appeal the ruling; spokesman Charles Miller said attorneys were reviewing it.

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Adm. Mike Mullen — both in favor of repealing “don’t ask, don’t tell” — say they prefer that the change wait until the military completes a review of the issue. That study, due in December, includes surveys of troops and their families to get their views and help determine how a change would be implemented.

Gay-rights activists, worried that the election could tilt the balance of power in Congress, don’t want to wait.

“We’re pleased by the judge’s decision, but this decision is likely to be appealed and will linger for years,” said Aubrey Sarvis of the Servicemembers Legal Defense Network, which has lobbied against ‘don’t ask, don’t tell.’

The House-passed repeal measure is contained in a broader defense policy bill which has yet to be sent to the Senate floor because of an objection by Republican Sen. John McCain during debate in the Armed Services Committee.

McCain said it was “disgraceful” to push for a vote on the repeal before completion of the Pentagon review.

Democrats, who effectively hold 59 Senate seats, will need at least some Republican support to reach the 60 votes needed to pass the bill. Republican Susan Collins of Maine voted for repeal in committee.

The Senate has a packed agenda for the next few weeks before its recess, and Republicans have warned that they might not make time for the defense bill if it contains controversial amendments. Along with the ‘don’t ask, don’t tell’ repeal, it includes a proposal that would allow female service members to receive abortions at military facilities.

Among those on the spot is Senate Majority Leader Harry Reid, who must decide how hard to push for a vote on the repeal.

Over the summer, Reid was given the West Point ring of Lt. Dan Choi, an Iraq war veteran who was discharged from the New York Army National Guard because he was open about his homosexuality. Choi said he would take back the ring only when ‘don’t ask, don’t tell’ was repealed, and he was among many activists urging Reid to press hard for a vote.

“The time for accountability has come,” Choi said Friday. “Sen. Reid needs to follow the leadership of Judge Phillips and take immediate action to support the men and women serving in our nation’s military.”

President Barack Obama has said he would like ‘don’t ask, don’t tell’ repealed, but wants Congress to take the lead in accomplishing that. Republicans on Friday called on the administration to defend the law until the Defense Department had a chance to complete its review.

“After making the continuous sacrifice of fighting two wars over the course of eight years, the men and women of our military deserve to be heard — and have earned that right,” said California Rep. Buck McKeon, the top Republican on the House Armed Services Committee.

During the trial before Phillips, government attorneys presented only the policy’s legislative history in their defense and called no witnesses.

Justice Department attorney Paul G. Freeborne argued that the issue should be decided by Congress rather than in court. He said the plaintiffs were trying to force a federal court to overstep its bounds and halt the policy as it is being debated by lawmakers.

In 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the law itself is constitutional, but the way the military applies it is not. The court said it’s OK to discharge people for being gay — but only if the military proves that the dismissal furthers military readiness.

The Pentagon has ignored that ruling over the past two years, continuing to discharge gays without making such a showing.

The case before the 9th Circuit concerned former Maj. Margaret Witt, a decorated Air Force flight nurse discharged for having a long-term relationship with a civilian woman in Washington state. Witt continues to seek reinstatement, and a federal trial was scheduled to begin Monday, Sept. 13 in Tacoma over whether her firing actually furthered military goals.

Phillips’ decision was the third federal court ruling since July to assert that statutory limits on the rights of gays and lesbians were unconstitutional. Earlier, federal judges ruled against California’s Proposition 8, which bans same-sex marriage, and against the federal Defense of Marriage Act, which denies federal recognition to same-sex marriages even in states such as Massachusetts that allow them.

—  John Wright

Groups challenging law that revealed donations by Target, Best Buy to anti-gay candidate

MARTIGA LOHN  |  Associated Press

ST. PAUL, Minn. — The future of a new Minnesota law that let the public know about polarizing political donations from Target Corp., Best Buy Co. and other companies rests with a federal judge who will decide whether to suspend the disclosure requirement on free speech grounds.

U.S. District Judge Donovan Frank said Friday, Aug. 20 he will rule within a month on a request for a temporary injunction to suspend the law, which could free corporations and other independent groups to spend on this year’s election without revealing their identities. Abortion opponents Minnesota Citizens Concerned for Life, the anti-tax Taxpayers League of Minnesota and a travel agency brought the lawsuit last month.

Their attorney, Joe La Rue of Terre Haute, Ind., said Minnesota’s disclosure requirements for independent spending are so onerous that they amount to an unconstitutional ban on free speech. Under a law that took effect June 1, Minnesota makes corporations and other independent political groups register with state campaign finance regulators. They’re also required to file public reports naming their donors and itemizing their expenditures five times this year.

“These are the burdens that the Supreme Court said you cannot put on people who want to exercise their free speech rights,” La Rue said during a three-hour hearing.

State Solicitor General Alan Gilbert said the law doesn’t block corporations and independent groups from spending unlimited amounts, as long as they disclose their spending. He said the public debate over Target’s donation shows that the law works.

Under the new law, a business-oriented political fund called MN Forward collected more than $1 million since June, including $150,000 from Target. When MN Forward disclosed its donors as required twice last month, Target became the focus of a national backlash from liberals and gay rights supporters because of MN Forward’s support for Republican gubernatorial candidate Tom Emmer, a vocal gay marriage opponent.

“The public has a compelling interest in information regarding sources of political spending so they can make informed decisions in the political marketplace,” Gilbert said.

The Legislature unanimously passed the disclosure law after a recent U.S. Supreme Court ruling allowed corporations to spend company funds directly on elections, wiping away prohibitions on corporate campaign spending in Minnesota and about half the states. The statute applies to independent expenditures, or those made without a candidate’s input or knowledge.

In Target’s case, the company wasn’t required to disclose the donation, but MN Forward was. But the new law allows companies themselves to spend on campaigns if they register and follow the disclosure requirements.

La Rue said the law requires corporations to account separately for such political spending, violating their right to spend general corporate funds on elections.

Frank interrupted the attorneys frequently with technical questions, at one point asking both sides whether a temporary injunction would mean the end of disclosure for this election cycle.

Assistant Hennepin County Attorney Dan Rogan said lifting the law could lead to a flood of corporate money into the election in October, without voters knowing who was behind the messages. Minnesotans will elect a new governor and the entire Legislature in November.

If the law is struck down, the earliest that the Legislature could replace it would be next year.

—  John Wright

Ft. Worth ordinance could affect Pride, AIDS walk

Council approves higher fees, new rules on outdoor events, but attorney says city plans to ‘phase in’ enforcement to lessen impact

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Tony Coronado and Allan Gould
Tony Coronado and Allan Gould

The Fort Worth City Council has enacted a new outdoor event ordinance that changes requirements and increases fees for some outdoor events.

The changes, which go into effect Oct. 1, could impact future Tarrant County Gay Pride parades and picnics held in October each year, and it could also affect the Tarrant County AIDS Outreach Center’s AIDS Walk, held each spring.

Senior Assistant City Attorney Sarah Fullenwider acknowledged that fees for such events were increased, but the rest of the ordinance is primarily about codifying rules already in place.

“We took current policy and put it into an ordinance,” Fullenwider said.

She noted that the ordinance “doesn’t apply to First Amendment activity,” but that it does require organizers give the city at least 48 hours’ notice for an event that will close a street.

First Amendment activities refer to protests or other gatherings that are political in nature and involve exercising free speech rights.
The new Fort Worth requirements are for events that expect 500 or more participants and spectators. In Dallas, permits are required for 75 or more people.

The fee in Dallas is on a graduated scale based on number of expected attendees. For more than 20,000 expected attendees, such as the Alan Ross Texas Freedom Parade, the city charges $500, plus a late fee for applications received less than 45 days before an event.

Fort Worth will now require event planners to attend a calendar committee meeting. To provide enough police protection, the city is trying to prevent overlapping scheduling.

Organizers must also attend a pre-event meeting and submit a traffic plan if streets are to be closed, Fullenwider said.

Special rules apply to downtown, the Stockyards and the Near South Side, which includes the area where Fort Worth’s annual Pride parade is held.

Fullenwider said there was no request from the Museum District for any special consideration,  probably because events there do not affect the surrounding neighborhoods to the same extent.

Walks, runs and races have some special rules. Normally, all business and homeowners in the affected area need to be notified that an event will take place in front of their property.

For longer routes, area property owners may be notified by e-mail, signs, mail or newspaper ads.

ROYALTY ON PARADE | The 2009 Tarrant County Gay Pride Week titleholders wave to their fans lining the route of the parade down South Jennings last October.

Fees, which are currently $150 will not rise immediately, and Fullenwider said officials have not yet determined what the new fees will be.

She did note, however, that the city is aware of the effect increased costs can have on organizations.

She said that officials are talking about phasing in any eventual increase.

Tony Coronado of the Tarrant County Gay Pride Week Association said his organization isn’t sure yet how the new ordinance might affect the Pride Week events. But so far, he added, he hasn’t seen any big changes

In the past, Fort Worth’s annual Pride Picnic was considered a private event that was permitted through the parks department. Because of its size, it would now be considered a public event and require a city permit as well, Coronado said.

Coronado said that a large expense for the parade is hiring extra off-duty police officers.While the number of streets to be closed has not changed, he said the number of entries could affect the number of officers needed.

The parade this year will be held on Oct. 3, after the ordinance takes effect. But permits are already in place and Coronado said he has already met with the police department.

One change in this year’s parade will be a block party that will be held at Pennsylvania and South Jennings streets. A block in each direction from the intersection will be closed all day.

That required extra coordination with the city, Coronado said, but the new ordinance presented no obstacles.

However, by next year, higher fees may be in place.  If that happens, Coronado said, “We’ll just have to bump it up.”

AIDS Outreach Center Executive Director Allan Gould said the new ordinance will affect several events benefiting his organization, including the annual AOC AIDS Walk next spring and the Lone Star Ride Fighting AIDS next month.

“We’ll have new due diligence on our part” to make sure the proper permits are in place, Gould said.

While this year’s Lone Star Ride happens before the new ordinance goes into the effect, if the bike ride follows the same route next year, fees will be higher and organizers will have to follow new rules about notifying everyone along the course.

The AIDS walk would also be subject to higher fees, which Gould said he hoped the city would consider waiving for fundraising events for local nonprofit organizations.

Gould said a bigger factor was that the walk is in the museum district, as is Artists Against AIDS, and the free lot outside the Community Arts Center has recently become paid parking.

Gould said hoped that wouldn’t have a negative impact on participation.

But he said AOC has been considering several solutions, including moving events out of the city or to a large, private downtown venue such as the Tandy Center.

Fort Worth Councilmember Joel Burns said that a mandatory insurance ordinance was passed last year that goes into effect at the same time. He said the new rules, however, shouldn’t materially impact neighborhood or LGBT groups.

“My hope is they’d be even better,” Burns said.

He said he thought the new ordinance would help police and city staff coordinate with groups and help make events safer.

“We held five public meetings,” Fullenwider said. “We’re hoping we did a good job. In a year, we plan to meet with event holders and see how it’s working.”

This article appeared in the Dallas Voice print edition August 20, 2010.

—  Michael Stephens

Wisconsin high court upholds marriage ban

The Wisconsin Supreme Court this a.m. upheld the state’s same-sex marriage ban in a unanimous decision. A lawsuit alleged that the referendum on the state’s 2006 constitutional amendment was improper because it dealt with both marriage and civil unions:

The court rejected a lawsuit that claimed the amendment violated a rule that limits referendum questions to a single subject. The lawsuit, filed by a voter opposed to the amendment, argued that gay marriage and civil unions were two different subjects.

Justice Michael Gableman says both sentences “carry out the same general purpose of preserving the legal status of marriage in Wisconsin as between only one man and one woman.”

The plaintiffs in the Wisconsin case argued that some voters may oppose same-sex marriage but support civil unions. Therefore, they said, the referendum violated their free speech rights.

Texas, of course, has a similarly worded amendment. The 2005 Texas amendment bans both same-sex marriage and “any legal status identical or similar to marriage.”

—  John Wright