Sen. Mark Udall: ‘best move forward’ for DADT is in Def. Bill — and he hasn’t spoken to White House

Kerry Eleveld interviewed Senator Mark Udall, who actually has been a fierce advocate for us on Capitol Hill. Udall sits on the Senate Armed Services Committee and has been one of the leaders on DADT repeal. The interview is worth a read. But, several questions stuck out for me. This one:

There is this talk of potentially stripping the repeal measure from the bill and passing the NDAA without it. In your opinion, is there any scenario under which you could get “don’t ask, don’t tell” through if it’s not attached to the Defense bill?

I don’t think there is, but I always believe hope springs eternal. I do think the best way to move this forward is in the NDAA and I do worry that if we don’t formalize the repeal process in statute now that we may not have this opportunity for a number of years in the future. If you listen to Sec. [Robert] Gates and Adm. [Mike] Mullen, they want the repeal in law, they want the Congress to have the final say. This is the most appropriate way to repeal an outdated policy that undercuts our national security.

That should help shut down the inane, counter-productive strategy concocted by the Palm Center, which no one can makes sense of.

And these two:

Do you get the sense that the White House is actively involved here? Have you spoken with them, and do you get the sense that they are having conversations with other senators?

I believe that a number of senators who are on the fence would benefit greatly from hearing directly from the president, the Secretary of Defense, and the from the chairman of the Joint Chiefs on the importance of passing the Defense bill and, included in that, the repeal provision.

That would be helpful. I don’t know whether they are doing that, but I’ve been weighing in on a series of letters and comments and outreach efforts to the White House, to other senators, and to the general public. So that would be helpful.

But you haven’t spoken with the White House directly?

I have not specifically spoken to the White House.

Still waiting for that promised White House strategy. Not seeing it.


—  admin

It’s been 24 hours since DOD has stopped enforcing DADT, and the sky hasn’t fallen

It’s funny how it’s been a full day since DADT stopped being the law of the land, and all the horrible things that Defense Secretary Gates warned AP about today haven’t happened.

Defense Secretary Robert Gates said Wednesday that abruptly ending the military’s “don’t ask, don’t tell” policy as a federal judge has ordered would have enormous consequences.

“I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training,” said Gates. “It has enormous consequences for our troops.”

The defense secretary said that besides the changes in training, regulations will need revisions and changes may be necessary to benefits and Defense Department buildings.

Enormous consequences. Consequences that haven’t happened since DADT was lifted.

There’s another thing worth mentioning. The probable reason the judge ordered DADT lifted immediately, without any kind of delayed implementation, is because the administration screwed up. Rather than tell the judge that they weren’t planning to appeal, and that they would appreciate a reasonable period of time to implement the demise of DADT, the Obama administration (likely under pressure from Gates) stuck to their guns and told the judge to stay implementation of her decision pending appeal. The judge basically told them to stuff it, and lifted the ban immediately.

So when the administration tells you in the next few days that it was impossible to accept the judge’s order because it would have lifted DADT immediately, and that would have “enormous consequences,” don’t believe them. The only reason the judge lifted the ban immediately is because the administration refused to ask for an “orderly” demise of the anti-gay policy. They can’t now use their own inaction as justification for reinstating the policy.


—  John Wright

LGBT legal panel: There hasn’t been ‘real change’ under Obama

Last week, John wrote a post about the LGBT Law Association conference, noting the panel on LGBT issues and the Obama administration included a slew of Obama apologists. That panel took place today.

Scott Blair, an AMERICAblog reader and NYU Law student, wrote to us from Miami, where he is attending Lavender Law, the National LGBT Bar Association Annual Meeting. He was at the plenary session, “Real Change: LGBT Issues and the Obama Administration.” Scott provided his observations:

When I first saw the event, I don’t think I was alone in expecting it to be a mostly celebratory piece on President Obama’s accomplishments. Instead, there seemed to be a consensus, even from the most vehement supporters of Obama, that the President has failed to follow through on his promises to the LGBT community and has been in many ways a disappointment.

The panel consisted of Matt Nosanchuck (Senior Counselor to the Attorney General for the Civil Rights Division of the Department of Justice), Paul Smith (a partner at Jenner & Block LLP, Co-Chair of the Board of Directors of Lambda Legal), Courtney Joslin (a Professor at UC Davis and the chair of the ABA Commission on Sexual Orientation and Gender Identity), Elaine Kaplan (General Counsel at the Office of Personnel Management), Jon Davidson (Legal Director at Lambda Legal), and Tobias Barrington Wolff (Professor of Law at the University of Pennsylvania and Obama’s LGBT Advisor during his campaign).

The panel opened with a discussion of the Office of Personnel Management and the DOJ listing the changes brought under the Obama administration, along with some surprising information. Matt cited the passage of the hate crime bill as something that we can attribute to President Obama, and gave credit to the DOJ’s testimony in Congress in support of the bill, and President Obama’s support for it. Surprisingly, Matt referred to Matthew Shepard Act as a heavy lift in Congress, with attacks from both the left and the right. Along with lifting the HIV travel ban, and (perhaps most significantly), the fact that federal agencies can’t discriminate on the basis of gender identity, there seemed to be a feeling that the White House had accomplished a great deal in what’s clearly been a hostile environment for any sort of legislation. The rest of the panel was, however, far from convinced.

I could give a blow by blow of the panel, but a lot of it is familiar to AMERICAblog readers. The DOJ claimed it had a duty to defend all laws so long as they could be constitutional; Jon pointed out numerous instances where the DOJ has not defended a law.

The highlights were as follows:

1) Nobody could explain where ENDA went to, in light of the repeated promises (which were pointed out by the panel) from Pelosi, Barney Frank, and the rest of the Democratic leadership that we would have a vote on this soon. The explanation for this was put on the “worsening political situation,” but as Jon pointed out, the window of opportunity for LGBT legislation is closing. As one panelist put it, “We are eighteen months into the Obama administration with no federal protection based on sexual orientation. This is remarkable.”

It was pointed out that the federal government now bans discrimination in federal employment based on sexual orientation and gender identity. This does not seem a comfort to LGBT individuals facing discrimination in the private industry, but the only person on the panel who thought ENDA had a chance of passing this year was Tobias Wolff, who suggested it could pass in a lame duck session. The rest of the panel seemed to think it was dead.

2) DADT proved surprisingly divisive. Everyone on the panel who discussed it expressed unhappiness that Obama has not issued a stop-loss order to stop expelling soldiers. The DOJ was criticised for arguing that gays and lesbians are only entitled to rational basis protection, which unfortunately Matt didn’t get a chance to address directly. Tobias claims that the repeal only happened this year due to White House pressure, and this is why we saw Ben Nelson and other senators support the compromise. Jon was critical of the compromise, which does not indicate when we will stop expelling gay and lesbian soldiers. And concern was expressed that the Democrats may not pass it before they lose control of the House. What this meant was unclear; several panelists (those not working for the DADT) were also unhappy about the shape of the “survey” about DADT. I think there’s a fear that the survey results will be negative, and then the Democrats will lose control of the House, leaving Obama to say “Too bad, so sad.”

3) Marriage oddly attracted the most attention. Tobias, who was perhaps the most supportive of the president’s position, agreed that “The president is flat wrong. He is in the wrong place on this issue. I spent a year and a half as the campaign’s principal representative saying that on the record,” but no one on the campaign criticized Tobias for disagreeing with the president. Tobias also thought that, “given the existential threats”, such as the economy and health care, it’s not surprising LGBT legislation has gotten so little coverage. Jon disagreed vehemently; as he put it, why can’t the president walk and chew gum at the same time? “It may be the best administration we’ve ever had, but it doesn’t mean we shouldn’t ask for what we deserve.”

Courtney pointed out her role in getting the American Bar Association to pass a resolution supporting the right of same-sex couples to marry, which recently passed overwhelmingly. She didn’t mention it, but I couldn’t help but think that a Democratic president who studied constitutional law is now to the right of the American Bar Association.

There wasn’t time for Q&A during the panel, but I did get to ask Matt a question afterwards about the DOJ’s stance that it has a duty to defend the constitutionality of all laws. In Perry, Republican governor Schwarzenegger and the Attorney General of California both decided that Proposition 8 was unconstitutional, and argued so in court. This seems to be analogous to Obama deciding that DOMA or DADT were unconstitutional, and so I asked Matt whether he thought California had made the wrong decision by refusing to defend Proposition 8’s constitutionality.

His answer was a bit unclear; he wasn’t sure about how the balance of powers were allocated in California (presumably Schwarzenegger is some sort of God-Emperor whose word is law), and he said Proposition 8 different because it was a constitutional amendment that passed by referendum, unlike a piece of legislation that was passed by Congress. This seems to be a very, very thin reed on which to draw. Matt’s stance is also a bit ironic, because in the campaign for California’s Attorney General, Democrats are urging the GLBT community to donate to the Democratic candidate because he wouldn’t defend Proposition 8. (The GOP Candidate for Attorney General did oppose Proposition 8, but thinks it’s the duty of the government to defend all laws).

I’ll conclude with a comment from Tobias, which seemed to reflect Elaine and Matt’s views as well. He argued that “for the first time, gay Americans have a government which cares about them.” Maybe. But I wonder if any of the soldiers who have been discharged on Obama’s watch think he cares about them. And I wonder if gay couples across the nation think a president who still believes they shouldn’t get married think that Obama is the president we deserve.

-Scott Blair
NYU Law, Class of 2011

Thanks for the excellent report, Scott.


—  John Wright

Contrary to ProtectMarriage’s belief/brief, the world hasn’t been paused for past 28 years

In’s appeal to the 9th Circuit, the Prop 8 proponents cited a particular 9th Circuit opinion from 1982 as providing further backing for their discriminatory cause:

Screen Shot 2010-08-19 At 1.35.49 Pm

Protect Marriage Appeal

And today, writing for Focus on the Family, Prop 8 ally (and Matt Barber cheerleader) Bruce Hausknecht attempts to lend credence to this logic:

Apparently, the 9th Circuit has already decided as a matter of law that there is a “rational basis” for a duly-enacted law that favors heterosexual marriage over homosexual marriage. Here’s the argument straight from the brief to the 9th Circuit:

This Court has likewise rejected claims that the Federal Constitution bars the government from limiting marriage to opposite-sex couples. In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), this Court interpreted “spouse” in a federal immigration provision to exclude partners in a purported same-sex marriage, and squarely held that “Congress’s decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.” Id. at 1042. This binding decision likewise forecloses Plaintiffs’ claims. (emphasis mine)

Despite 100 pages or so of Judge Walker’s so-called “fact-finding,” and another 30 or so pages containing conclusions of law, Walker never addresses why he isn’t foreclosed by 9th Circuit precedent from concluding that there is no “rational basis” for a law recognizing only one man, one woman marriage. Even if he’s previously addressed the 9th Circuit case during pre-trial proceedings, I’d still expect a reference to it. [SOURCE]

But here’s what neither Protect Marriage nor Hausknecht are telling you: That the world, including the body of findings that led to the Adams decision, has actually changed in the twenty-eight years since the case was decided. And we don’t mean in terms of emotions or public perception or polling, all of which are certainly part of the change as well. But also in terms of the hardcore facts that led to this particular Court of Appeals Decision.

First and foremost: The way immigration law applied to gays. In the relatively short Adams opinion, the three judge panel relied heavily on The Immigration and Nationality Act of 1952, and that which was added to the Act by the Immigration and Nationality Act Amendments of 1965. The 1965 amendments were outwardly hostile to gays and lesbians, specifically citing “aliens afflicted with…sexual deviation.” And so the 9th Circuit panel, working off what Congress had given them, specifically used that exclusion to speak to intent in terms of dealing with gays and their immigration statuses:

Our conclusion is supported by a further review of the 1965 amendments to the Act. These amendments not only added section 201(b) in its present form, but also amended the mandatory exclusion provisions of section 212(a) of the Act, 8 U.S.C. § 1182(a). Yet, both section 15(b) of the amendments, Pub.L. No. 89-236, § 15(b), 79 Stat. 911, 919 (codified at 8 U.S.C. § 1182(a)(4)), and the accompanying Senate Report, S.Rep. No. 748, 89th Cong., 1st Sess., reprinted in, [1965] U.S.Code Cong. & Ad.News 3328, 3343, clearly express an intent to exclude homosexuals. See Boutilier v. INS, 387 U.S. 118, 121, 87 S.Ct. 1563, 1565, 18 L.Ed.2d 661 (1967). As our duty is to ascertain and apply the intent of Congress, we strive to interpret language in one section of a statute consistently with the language of other sections and with the purposes of the entire statute considered as a whole. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). We think it unlikely that Congress intended to give homosexual spouses preferential 1041*1041 admission treatment under section 201(b) of the Act when, in the very same amendments adding that section, it mandated their exclusion. Reading these provisions together, we can only conclude that Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b).

Adams v. Howerton, 673 F. 2d 1036 – Court of Appeals, 9th Circuit 1982 [Google Scholar]

But what the current Prop 8 backers are not telling you? That in 1990, the U.S. Congress (with heavy lifting from Barney Frank) passed the Immigration Act of 1990, which withdrew “sexual deviation” from the INA so that it could no longer be used as a basis for barring U.S. entry. Sure, we LGBT people of 2010 still have a ways to go in terms of Uniting Our American Families. But this 1990 change was MAJOR in terms of immigration law and gay treatment in general. It’s a near certainty that if this change had passed in 1980 rather than 1990, the 9th Circuit would have looked at congressional intent a little differently.

Then there’s the matter of marriage itself, which is the other component on which the panel specifically focused. In 1982, there was nowhere in the world where folks could marry regardless of sexual orientation, nor was there all that much reasonable expectation that such was on the horizon. But here in 2010, a whopping ten countries offer full marriage equality. Close to twenty more offer civil partnerships or civil unions. Here in America, we have five states and the District of Columbia, as well as several other with C.U’s, D.P’s, and other partnership arrangements that were about as conceivable in ’82 as was the ability for a gay blogger to research all of this without ever leaving his chair.

Yes, marriage bans have also passed in that time. But that is the matter before the court today: The constitutionality of these bans. So when looking back at what led the 9th Circuit of 1982 to cite both non-recognition and “traditional and often prevailing societal mores” as big reasons for denial, one has to assume that the progress on this issue is what should surely hold the most weight. Laws have changed. Access has been granted. Heck, Mary Hart first joined “Entertainment Tonight” in 1982, and this year she announced she’s leaving. Society has changed, my friends!

So while Brice Hausknecht might opine this…

[Walker] must also be hoping for a 9th Circuit 3-judge panel that has “evolved” since the 1982 case. I’m not saying there aren’t certain 9th Circuit judges who would gladly ignore their own case law in a rush to rubber-stamp Walker’s decision; but even the typical left-leaning 9th Circuit judge is usually inclined to follow 9th Circuit precedent.

…the reality is that Walker doesn’t have to hope for mental evolution, even though that hopefully has occurred in the past three decades as well. The fact is that the world has factually evolved, even if still not to where we who value full equality want it to be (especially on subjects like marriage and immigration). So we actually suspect that both Walker and the 9th Circuit would/will be more than willing, able, and inclined to take this Adams matter on, if pressed. But we’re just as confident that the anti-LGBT side “would gladly ignore” whatever inconveniences that a fully fleshed out examination would provide, just as they’ve done with almost every fact pertaining to this case and Judge Walker’s decision.


**MORE: The Protect Marriage brief goes to cite Adams again, saying:

Screen Shot 2010-08-19 At 2.45.54 Pm

A few things on this one: In actuality, the 1982 court panel merely posited reproduction as one possibility for why same-sex marriages are not granted “preferential status,” not the concrete reason why marriage imitations cut the legal mustard:

In effect, Congress has determined that preferential status is not warranted for the spouses of homosexual marriages. Perhaps 1043*1043 this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores. In any event, having found that Congress rationally intended to deny preferential status to the spouses of such marriages, we need not further “probe and test the justifications for the legislative decision.” Id. at 799, 97 S.Ct. at 1481.

See that final note about not further probing and testing the justifications, and simply relying on Congress’ rationality? That alone tells us that the court didn’t say that “the never produce offspring” mention is *the* reason why they arrived at their decision!

But beyond that: As fleshed out in the above post, this 28-year-old read of Congress’ intent was built on a body of facts that has concretely, undeniably changed! While eyeglasses of 1982 might be making a fashionable comeback, they should not be the limited lenses through which we examine Adams today.

Good As You

—  John Wright