FAMILY LIFE: Crossing your T’s and dotting your legal I’s

Without benefit of legal marriage, same-sex couples in Texas have to take extra steps to protect themselves and their children

DRACONIS VON TRAPP | Staff Writer
intern@dallasvoice.com

Even as the LGBT community around the country celebrated this weekend with same-sex couples who were able to legally marry in New York state for the first time, and even though six states plus the District of Columbia now legally recognize same-sex marriage, the battle for equality is still a long way from over.

When American opposite-gender couples legally marry anywhere, they automatically receive a long list of rights, benefits and responsibilities. But same-sex couples, even those married in a jurisdiction where such marriages are legal, still have to jump through any number of legal hoops to ensure that their unions — and their families — are legally protected.

Same-sex couples

On July 20, Ron Wallen of California lost his partner of 58 years — and almost everything else at the same time.

The two had been legally married for almost three years when Wallen’s partner, Tom Carrollo, passed away, leaving Wallen with no monthly pension, no Social Security benefits and no home — all because of the federal Defense of Marriage Act, DOMA for short.

Signed into law by President Bill Clinton in 1996, DOMA, according to the Human Rights Campaign, requires that, “Regardless of the Social Security Administration’s position, the Defense of Marriage Act of 1996…established the legal definition of ‘marriage’ as only a legal union between one man and one woman…”

The law is currently under appeal.

Section 3 of DOMA, which prevents the federal government from recognizing the validity of same-sex marriages, has been found unconstitutional in two Massachusetts court cases. The Department of Justice, under President Obama’s administration, has even declined to defend the law in court because the DOJ has said that at least parts of DOMA are unconstitutional.

And in many states — including Texas — not only is same-sex marriage not legally recognized, such legal recognition has been expressly prohibited through statute or constitutional amendment.

“We have no rights in Texas,” said Dallas attorney Rebecca Covell. “[LGBT couples] are single in the eyes of the laws of Texas, so you have to create your rights by contract.”

In order to imitate the same rights a legally married opposite-sex couple gets with a marriage license, Covell said, same-sex couples need six documents: A medical power of attorney, a statutory durable power of attorney, a declaration of guardianship, a directive to physicians, an appointment of agent to control disposition of remains and a will.

Covell said Texas has one of the easiest probate systems in the country, and the “easy track” for same-sex couples here is to make with a will. It is, she said, possibly one of the most important documents a same-sex couple needs.

“If you don’t have a will, the state of Texas makes all the decisions for you, and everything goes to your next of kin,” Covell said. “What you can do with a will includes designating who the beneficiary is; designating who you leave in charge; making special provisions if you have children, someone with a special need, things of that nature; and designating when certain people will receive assets.

“None of that happens if you don’t take the time and trouble of doing a valid Texas will,” she reiterated. “The state of Texas will make all those decisions for you — and Texas is not a gay-friendly state.”

“We have been written out of the laws in Texas,” says Covell. “That’s why having these documents is imperative for non-traditional couples.”

Even with all these documents in place, same-sex couples are still denied certain benefits and advantages — such as Social Security survivor benefits, tax benefits and an unlimited marital deduction in your will — thanks to DOMA. Some 1,138 federal rights are attached to a marriage license, and it’s impossible to mimic all of these rights otherwise.

Though a gay couple can’t get Social Security benefits from their partner, they can still appoint their partner as a beneficiary for a 401K plan or an IRA.

With pensions, it is a case-by-case basis. If one partner works for a corporation outside Texas whose company policy would recognize the other partner for spousal benefits, you might be in luck. It does, however, depend on the company policy, and this is not consistent among all out-of-state businesses.

“We get no automatic protections under the laws,” Covell says in closing, “and you owe it to yourself and your partner to protect your relationship.”

Same-sex couples with children

When children are involved, the stakes can be higher. If one of the partners in a same-sex relationship dies, keeping children with their surviving parent entails a lot of paperwork.

Attorney Stephanie Hall says that same-sex couples have three options for protecting the custodial rights of the non-biological parent — or, in legal terms, the non-parent — assuming there’s not a second biological parent outside the same-sex relationship: a joint managing conservatorship; a same-sex, second-parent adoption, and a will with a declaration of guardianship.

With a joint managing conservatorship, non-married straight couples and same-sex couples can, for about $1,200, avail themselves of some of the same statutory laws that apply to married couples when it comes to child custody, such as the right to consent to medical treatment, the right to make educational decisions and right to represent a child in legal proceedings.

In a same-sex, second-parent adoption, which costs around about $3,500, non-biological parents can become the legal second parent to their children. Due to a law in the Health and Safety Code, the birth certificate can’t be reprinted with the same-sex parent’s name on it due to the “one male, one female parent” requirement, but adoptive parents do get a few more benefits than those with just a joint managing conservatorship, such as tax return exemptions.

“Same-sex, second-parent adoptions are done by agreement between the parent and the non-parent,” says Attorney at Law Michelle May O’Neil.

With adoption, there is a very small chance of the adoption being considered void, though this almost never happens, O’Neil said.

Hall said that many of her clients have chosen to do both a joint managing conservatorship and a legal adoption to make sure their children are protected.

There is “no distinction” between an adoptive and biological parent, according to O’Neil.

A will is once again supremely important, as it designates who gets custody of any child or children, and the children’s estate, in the event of a parent’s death.

In an advance declaration of guardianship, Hall said, a biological parent designates, in advance of any illness or injury, who will be guardian of their child.

Hall said it is a “very strong document” that is a parent’s way of saying, in effect, “Hey judge, if anyone starts to fight over custody of my kid after I’m dead, while I’m competent, here’s my first choice, my second choice, my third choice. …”

In a same-sex family, if there is another living biological parent outside of the relationship — such as, in the case of a divorce — the non-biological parent’s only means of protection are to have a same-sex, second-parent adoption.

“There is no automatic assumption that the other parent has any legal relationship with the child,” says attorney Susan McKay.

In the event that the non-biological parent dies, it is essential that person have a will citing what their partner and children will receive. Otherwise, everything goes to the deceased partner’s next of kin.

Compare that to a legally recognized marriage where, if the deceased didn’t leave a will, everything automatically goes to the legal spouse.

“If a straight person dies without a will, it’s set up that way by default,” said Hall. “For an LGBT person, you have to take that precaution” of making a will and designating who gets what.

“The safest thing to do would be for the non-parent to adopt the children and have a will,” said O’Neil. “Short of having a will, then the non-parent needs to basically adopt the children and become a parent. I can’t stress enough to people in the community that having that legal document relationship is essential to secure the relationship of the non-parent and the children.”

Due to the lack of legal standing a gay couple has in the eyes of the law, there isn’t a whole lot that can be done in terms of child custody if a gay couple decides to separate.

If no other precautions have been taken, such as a joint managing conservatorship, then the non-biological parent has 90 days from the day they were living with and sharing “care, control and possession” of the child to file a suit, assuming they had been caring for that child for at least six months prior to their separation.

Hall noted that the exact meaning of “care, control and possession” has been debated in the courts in several recent court cases — involving grandparents, longtime boy/girlfriends in opposite-sex relationships and same-sex relationships — and results so far have been inconsistent.

O’Neil and her law firm recently litigated such a case involving a lesbian couple, and although O’Neil’s client did win the right to sue for custody following several appeals, the client eventually chose not to start over in trial court with the actual custody case to avoid putting the child through the trauma of an even-more extended legal battle.

If a couple has a joint managing conservatorship already in place, then legally there should be a level playing field in the battle over custody of the children if a same-sex couple splits.

However, if the non-biological parent didn’t adopt the children or get a conservatorship, then aside from asking for periods of possession, the non-biological parent is likely to end up with limited rights and have less time with the child than the biological parent. The judge would still, however, determine what was in the best interest of the child and either parent could end up with primary custody.

Senior same-sex couples

With a heterosexual marriage, couples only have to be married 10 years for one to get a deceased partner’s Social Security benefits as a spouse. In an LGBT relationship, surviving partners get nothing.

Retirement isn’t the only problem facing older same-sex couples. In a nursing home or assisted living situation, some same-sex couples are faced with prejudice at their most vulnerable and are forced to go “back in the closet.”

According to the website for SAGE, a national organization providing programs and services for older LGBT people, LGBT older adults may be as much as five times less likely to access needed health and social services because of their fear of discrimination from the very people who should be helping them.

Older LGBT adults are twice as likely to live alone as heterosexual older adults and more than four times as likely to have no children. Because of that, the informal caregiving support system people assume is in place for older adults may not be there for LGBT elders.

According to the “We Give a Damn” campaign’s website, older LGBT people are at greater risk for depression, substance abuse, mental and physical health complications, unnecessary institutionalization and premature death.

Ultimately, 1 in 5 say they would have no one to call in a crisis, a rate 10 times greater than for the rest of the senior population, the website notes.

According to one survey of agencies serving seniors in the U.S., half of all respondents reported that if the sexual orientation of gay older adults were known, they would not be welcomed at senior centers. Even when providers mean well, they often lack the training to offer culturally sensitive services that meet the needs of gay and transgender older adults, the survey said.

“…Even when providers are supportive, fear of discrimination keeps many LGBT elders in the closet and prevents them from seeking the care they need,” said Michael Adams, executive director of SAGE.

While legal resources and options for addressing these issues are relatively scarce, advocates said older LGBT people, whether they are single or part of a couple, need to take advantage of as many options as they can to plan ahead and hopefully avoid future problems.

For same-sex couples in their retirement years, planning is paramount.

In Texas, the law does not default to protect LGBT couples. Since a gay marriage isn’t federally recognized and Social Security benefits cannot be passed onto a same-sex spouse, it is once again urgent to for same-sex couples to have a will designating their partner as their heir. Without it, again, the deceased partner’s legal next of kin gets everything.

A same-sex partner can be designated as beneficiaries in 401K plan as well as IRAs. Since a 401K is provided by an employer, it’s more structured. IRAs are designed for those without 401Ks, so they’re a bit less structured.

The key to retiring with a same-sex partner is planning, said attorney Christopher Farish.

But, Farish added, “Failure to plan is not only an issue in the LGBT community. Failure to plan for retirement or death of a spouse is universal. Still, failure to plan in an LGBT relationship can be catastrophic.”

—  John Wright

What’s Brewing: Gov. Rick Perry tries to distance himself from wingnut day of prayer partners

Your weekday morning blend from Instant Tea:

1. Texas Gov. Rick Perry — perhaps fearing they could hurt him in the presidential election — appears to be trying to distance himself from the extreme views of groups and individuals with whom he’s partnering with for The Response, his day of prayer and fasting on Aug. 6 in Houston. “I’m sure that through my elections in the past that there have been some groups that have endorsed me publicly, that I appreciate their endorsements, but their endorsements of me doesn’t mean I endorse what they believe in or what they say,” Perry said Monday, according to The Dallas Morning News. “I appreciate anyone that’s going to endorse me, whether it’s on The Response or whether it’s on a potential run for the presidency of the United States. Just because you endorse me doesn’t mean I endorse everything that you say or do.” Sorry, governor, but nice try. Being endorsed by someone in a political race is a little different from partnering with them and selecting them to foot the bill for an event like this.

2. The U.S. Senate for the first time ever on Monday confirmed an openly gay man to serve as a federal district judge, The Washington Blade reports. J. Paul Oetken, nominated by President Barack Obama in January, was confirmed to serve on the U.S. District Court for the Southern District of New York by a vote of 80-13 (Texas Republican Sen. Kay Bailey Hutchison was among those who voted against Oetken’s confirmation). Oetken is not the first openly LGBT person to be confirmed as a federal district judge, as this distinction belongs to U.S. District Judge Deborah Batts, an out lesbian appointed by President Bill Clinton. And of course he’s not the first non-openly gay man, as we’ve had Judge Vaughn Walker and undoubtedly others. But Oetken’s confirmation is still a pretty big deal: “It wasn’t even two decades ago that openly LGBT people had a hard time even being considered for a presidential appointment, and some who got nominated faced fierce opposition in the Senate,” said Denis Dison, a spokesman for the Gay & Lesbian Victory Fund. “Today, more than 200 LGBT Americans have been appointed by President Obama, and more than 25 of those were nominated for Senate-confirmable positions.”

3. Towleroad has posted bios of those scheduled to testify during the Senate Judiciary Committee’s hearing Wednesay on repeal of the Defense of Marriage Act. The lack of diversity among witnesses has drawn criticism from the likes of Lt. Dan Choi and prompted an online petition calling for the Human Rights Campaign to “Wake up from white privilege and diversify!” But The Washington Blade reports that witnesses were actually selected by Sen. Patrick Leahy, D-Vt., in consultation with outside groups, and Immigration Equality, a group focused on DOMA-related immigration issues, isn’t concerned about the absence of binational same-sex couples from the witness list.

—  John Wright

DOMA under assault but still potent

Controversy over federal marriage ban creates rollercoaster ride for same-sex couples living with real-world consequences

DAVID CRARY  |  Associated Press

NEW YORK — These are frustrating, tantalizing days for many of the same-sex couples who seized the chance to marry in recent years.

The law that prohibits federal recognition of their unions in under assault in the courts. The Obama administration has repudiated it and taken piecemeal steps to weaken its effects.

Yet for now, the Defense of Marriage Act remains very much in force — provoking anger, impatience and confusion among gay couples.

Because of DOMA, some binational couples still worry about deportation of the non-citizen spouse. Survivor benefits aren’t granted after one spouse dies. And couples filing joint tax returns in the states allowing same-sex marriage must still file separately this month with the IRS.

Said Brian Sheerin, who wed his partner six years ago in Massachusetts, “There are times I feel like a third-class citizen.”

When DOMA was passed overwhelmingly by Congress in 1996, and signed by President Bill Clinton, it was a pre-emptive strike. There were no legally married same-sex couples in the United States.

Since 2004, however, thousands of gays and lesbians have married as Massachusetts, Vermont, Connecticut, New Hampshire, Iowa and the District of Columbia legalized same-sex unions. Many others have wed in foreign countries.

“What was once theoretical now has practical effects that people can see, that can’t be explained other than as discrimination,” said Jon Davidson, legal director of the gay-rights group Lambda Legal. “There are people who’ve been married six years who are increasingly getting impatient.”

The controversy around DOMA creates an emotional rollercoaster for same-sex couples.

Last July, for example, many of them rejoiced when a federal judge in Massachusetts ruled that the act was an unconstitutional infringement on equality for same-sex couples.

There was more elation in February, when President Barack Obama ordered his administration to stop defending the law in the still-pending Massachusetts case and several other lawsuits. Yet no one knows when these cases will finally be resolved.

Last month, there was a flurry of excitement among binational gay couples when a U.S. Citizenship and Immigration Services spokesman indicated that cases would be “held in abeyance” while broader legal issues were reviewed. Hopes soared that this would mean a halt in deportations of foreigners married to gay Americans, but within two days the federal agency said there would be no policy change.

“It’s gut-wrenching to go through the ups and downs,” said Doug Gentry, whose Venezuelan spouse, Alex Benshimol, faces a deportation hearing in July.

They briefly hoped the case would be put on hold — but now have been notified that an application for permanent residency for Benshimol has been denied.

“I’ve had the rug pulled out from under me so many times,” Gentry said. “You’re so used to getting your hopes up, only to get them dashed, that you almost don’t want to hope.”

The couple, who married last year in Connecticut after six years as partners, run a pet grooming business in Palm Springs, Calif.

“I don’t feel we’re different from any other family,” said Gentry, 53. “I don’t want to be forced to stay with my husband by going into exile, and leaving my home, my business and my country behind.”

DOMA also complicates life for U.S. citizen Edwin Blesch and his South African husband, Tim Smulian, who married in Cape Town in 2007.

Unlike some gay binational couples, in which the foreigner overstays a visa, Smulian has abided by the terms of tourist visas which limit him to six months annually in the U.S. That means that to be together, the two retirees must uproot themselves from their comfortable home on the northeast tip of Long Island and spend half the year abroad.

“It’s a great personal, financial and medical inconvenience,” said Blesch, 70, who has had past health problems, faces surgery this spring and relies on the care that Smulian provides him.

Both men believe DOMA is doomed to be struck down by the courts or repealed by Congress, but Blesch says the endgame could take years.

“It will be a long process,” he said. “I might be sitting in a rocking chair in a nursing home by then — or dead.”

For men and women whose same-sex spouse has died, DOMA can prevent the payment of Social Security or Veterans Administration survivor benefits that would be paid out to heterosexual widows and widowers.

In California, 77-year-old Ron Wallen worries that he might be unable to afford staying in the home near Palm Springs that he and his partner of 58 years, Tom Carrollo, had shared before Carrollo’s death in March.

The two men married in June 2008, during a brief window where same-sex marriage was legal in California. But now DOMA prevents Wallen from receiving Carrollo’s Social Security survivor benefits, and he’s living only on his own $900-a-month Social Security check — about half of what Carrollo had been receiving.

“It would seem to smack the constitution in the face,” Wallen said of DOMA. “It hurts like hell.”

In Cheshire, Conn., retired school teacher Andrew Sorbo is in similar straits. His husband, Colin Atterbury, who died in May 2009, had been a federal employee at a nearby veteran’s hospital, and DOMA prevents Sorbo from receiving his VA pension.

The two men had entered into a civil union in Vermont in 2004, then married in Connecticut in January 2009 as Atterbury became ill with pancreatic cancer.

“80 percent of our household income disappeared when he died,” said Sorbo, 64. “It’s a betrayal of the ideals I used to teach my students … I know there isn’t justice for all.”

Though Connecticut is a relatively liberal state — with same-sex marriage now causing little controversy — Sorbo said many people he encounters are unfamiliar with DOMA.

“They have no idea how gay people are not getting the same rights they are,” he said. “It passes them by.”

He expects DOMA to be overturned eventually in court. “But they’ll never make it retroactive,” he said. “So for me it’s too late.”

Brian Sheerin says DOMA cost him and his husband, Ken Weissenberg, tens of thousands of dollars in extra taxes when they sold a home four years ago in order to move to Bedford, N.Y. A heterosexual married couple would have been able pocket $500,000 of the sale price before capital gains taxes kicked in, he said, but they were listed as “single” and taxed on proceeds over $250,000.

“That still sticks in my craw,” said Sheerin, 51, who married Weissenberg in Massachusetts in 2005.

He recalled returning with their two adopted daughters from a family vacation in Mexico to encounter a U.S. immigration officer who wanted Sheerin and Weissenberg to go through the entry point separately. The officer eventually relented, but the elder daughter took note.

“She asked, `Why did they do that?”’ Sheerin recalled.

DOMA’s future is uncertain. Democrats in Congress have introduced legislation to repeal it, but that effort is considered a long-shot while Republicans control the House. The pending court challenges could lead eventually to a Supreme Court decision on DOMA’s constitutionality — but that process, if it happens at all, could take several years.

DOMA’s foes are heartened by several recent opinion polls showing, for the first time, that more than half of Americans are ready to accept legal same-sex marriage. They hope this shift will reinforce the legal arguments against DOMA — notably that it creates an unwarranted exception to the historical federal policy of recognizing marriages of couples legally wed in the states.

“This exception denies thousands of legally married couples and their families the critical safety net that only marriage brings,” says Evan Wolfson, president of Freedom to Marry. “Perhaps worst of all, this is discrimination by the government itself, hurting families without helping anyone.”

One question is how DOMA will be defended in the pending court cases.

With the Obama administration now refusing to perform that task, the GOP leadership in the House says it will intervene to defend DOMA in court, but details remain sketchy. The Human Rights Campaign, a leading gay-rights group, has written to 200 of the country’s top law firms urging them not to take up the case on behalf of the House.

Joe Kapp, a Washington-based financial planner, said the uncertain status of DOMA has added to the challenges of advising his large gay clientele.

“The changes taking place are exciting, but there’s a lot of flux, and conflicting ways in which the administration is looking at relationships,” he said. “For now, couples probably should continue to assume that they will be recognized as strangers in the eyes of the law.”

Some activists are urging a more confrontational approach. A “Refuse to Lie” petition has been circulating on the Internet — promoted by various gay-rights groups — encouraging married gay couples to file joint federal tax returns in defiance of DOMA.

“The federal government’s refusal to recognize our marriages is blatant discrimination and we will not play along by lying on our tax returns and pretending we are single,” the petition says. “The government has chosen to discriminate and we choose to expose their bigotry by refusing to lie.”

At the bottom of the declaration is a disclaimer suggesting those who join the campaign consult an attorney for legal advice.

At least a half-dozen legal challenges of DOMA are pending, and the advocacy group Immigration Equality is laying the groundwork for an additional lawsuit focused on the plight of binational couples.

Meanwhile, several Democrats in Congress are urging federal immigration authorities to halt deportation cases affecting such couples.

“I recently applauded the president’s decision to order his Justice Department to stop defending DOMA in federal court,” said Rep. Jackie Speier, D-Calif. “In that same spirit, he should now order his Homeland Security Department to halt all deportations until we find the courage to kill this unconstitutional law.”

The administration already has taken some steps to ease DOMA’s impact, such as requiring executive branch agencies to extend benefits to same-sex domestic partners of federal employees.

On April 1, the Department of Health and Human Services advised states that they can henceforth treat gay couples — whether married or in domestic partnerships — similarly to straight couples with respect to benefit programs. For example, Medicaid has exemptions to avoid forcing a healthy spouse to give up the family home and retirement savings in order to qualify a spouse for long-term care; that protection will now be permissible for sex-same as well as heterosexual couples.

The incremental moves have been welcomed by activists, but don’t prevent impatience.

Said Jon Davidson, “Now that even the administration admits DOMA is unconstitutional, that has people wondering why it’s still there.”

—  John Wright

Facebook adds civil unions, domestic partnerships to relationship status options

Props to Facebook peeps. The word is spreading about their updates to the relationship status field. The HuffPo posted earlier that “civil union” and “domestic partner” are now listed under the field as options and are being rolled out as we speak.

The changes were made in consultation with Facebook’s Network of Support, a group that includes LGBT [lesbian, gay, bisexual, transgender] organizations such as the Gay and Lesbian Alliance Against Defamation, the Gay, Lesbian, and Straight Education Network, and the Human Rights Campaign.

“As LGBT people face a pathwork of relationship recognition laws, this gives people more tools to adequately describe their relationship,” said Michael Cole, spokesperson for the Human Rights Campaign. “Facebook has been a company that has tried to be inclusive of the LGBT community and this just one sign of it.”

Richard Socarides, president of Equality Matters and former gay rights advisor to president Bill Clinton, echoed Coles’ praise.

from Huffington Post

—  Rich Lopez

Top 10: DADT repeal capped 17-year fight

Flash2
A PROMISE FULFILLED  | President Barack Obama gives a thumbs up after signing the Don’t Ask, Don’t Tell Repeal Act of 2010 on Wednesday, Dec. 22, at the Interior Department in Washington. Most agree it’s unlikely Obama will sign another pro-equality bill before 2013. (Associated Press)

No. 2:

View all of the Top 10

Anyone who was paying attention in 1993 knows what a devastating setback the community suffered with the codification of the military’s ban on gays. The community itself had asked the newly elected Democratic President, Bill Clinton, to end the military’s long-standing policy banning gays from service.

But instead, Sen. Sam Nunn, D-Georgia, orchestrated a parade of testimony and innuendo to suggest that the mere presence of gays would violate the “sexual privacy” of heterosexual servicemembers.

One female Naval petty officer testified that, “You are asking me to sleep and shower with homosexuals. You are asking me to expose my sexuality …”

Not surprisingly, 56 percent of the public opposed allowing “homosexuals” to serve “openly” in the military in 1993.

In December 2010, only 21 percent of Americans felt that way. And Democratic President Barack Obama, using a strategy of sticks and carrots that sometimes angered the LGBT community, helped drive through passage of a bill that will eventually lead to a dismantling of the ban.

What does that say about 2011?

Given the shaky economy, high unemployment, and intense partisan divide in Congress, there is little likelihood the Obama administration will take on another piece of pro-LGBT civil rights legislation in 2011.

The presidential election campaign of 2012 begins in earnest now and President Obama must tend to a wide variety of constituencies, as well as Middle America in general.

But he has shown — even before repeal of DADT — that his administration is willing to use its power to adopt more LGBT friendly regulations and policies that will advance the LGBT civil rights ball down the field.

And that is likely to be where the action will be, for the Obama administration, in 2011.

— Lisa Keen

This article appeared in the Dallas Voice print edition December 31, 2010.

—  Kevin Thomas

DADT repeal was a birthday gift for SLDN co-founder, Fort Worth native Dixon Osburn

Dixon Osburn

As a co-founder and former executive director of the Servicemembers Legal Defense Network, Fort Worth native Dixon Osburn says Saturday’s Senate vote to repeal “don’t ask, don’t tell” was a huge moment for him.

It was even bigger still because Saturday also happened to be Osburn’s 46th birthday.

“It was a pinch-me moment,” Osburn told Instant Tea earlier today. “It’s been a long hard fight, and watching the votes take place, I was shaking and crying and smiling and cheering all at once. I thought it would take us 20 years, and it took 17. It’s a great birthday present, and it shows that Texans are helping carve paths for equality.”

Osburn graduated from Trinity Valley School before obtaining his bachelor’s degree from Stanford and his law degree from Georgetown. He launched SLDN with former Army captain Michelle Benecke in 1993, the same year he says President Bill Clinton “capitulated” to DADT.

Osburn, who’d volunteered at SLDN’s predecessor, the Campaign for Military Service, launched the new group because he felt DADT was a defining moment in the history of gay rights — the first time our lives had been discussed on a federal level.

Osburn spent 14 years as SLDN’s executive director before stepping down in 2007. He worked as a consultant and wrote a book before recently joining Human Rights First as director of law and security.

“My focus is on the intersection of national security policy and human rights … trying to ensure we don’t return to a regime of torture, trying to ensure that those suspected of terror receive fair trials,” Osburn said. “All the years of work with generals and admirals with SLDN, is what I’m doing now on these sets of issues.”

Below is Osburn’s full, official statement on Saturday’s vote:

“Today is my birthday, and this is the best birthday present I could have asked for. The real gift, though, is to our nation, which believes in our national security and equality. This victory is a tribute to the 60,000 lesbian, gay and bisexual troops serving our nation in Iraq, Afghanistan, and around the globe. It is a tribute to the one million LGBT veterans who have been willing to shed blood for out country in defense of our freedom and liberty; they now have been accorded theirs. The repeal of DADT and implementation of non-discrimination policies by the Pentagon will be judged among the pantheon of civil rights advances in our country. Today, no state government, local government or private business can substantiate discrimination when our military does not. Diversity is strength.

“I want to thank President Obama, Secretary Gates and Admiral Mullen for leading. I want to also acknowledge the many advocates both individual and organizational that have helped this moment arrive. From Baron von Steuben, likely a gay man who helped organize the colonists during the American Revolution to the gay WWII vets who formed vibrant LGBT communities in NYC and San Francisco after the war, to Frank Kameny who protested the ban in the 1960s and 1970s in front of the Pentagon to Brigadier General Keith Kerr, Brigadier General Virgil Richards and Rear Admiral Alan Steinman, who came out as gay on the 10th anniversary of DA DT, to so many more who have fought for what is right for our nation and our armed forces. We owe you a debt of gratitude. December 18th is a great day.”

—  John Wright

Judges that will hear Prop 8 case called ‘a very good panel’ for gay marriage supporters

Backers of anti-gay California initiative say development means case even more likely to be decided by Supreme Court

LISA LEFF | Associated Press

SAN FRANCISCO — Two judges appointed by Democratic presidents and one named by a Republican will decide if a San Francisco trial judge improperly struck down California’s same-sex marriage ban, a federal appeals court announced Monday, Nov. 29.

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith of the 9th U.S. Circuit Court of Appeals were randomly assigned the landmark case from the court’s pool of 27 active judges.

The panel is scheduled to hear arguments next week over the constitutionality of the voter-approved ban, known as Proposition 8.

Reinhardt, a 79-year-old Los Angeles resident, was appointed by President Jimmy Carter in 1980 and is regarded as one of the 9th Circuit’s most liberal jurists. Hawkins, a 65-year-old Arizonan, was appointed by President Bill Clinton in 1994.

Smith, 61, was appointed by President George W. Bush in 2007 and keeps his chambers in his native Idaho.

Proposition 8′s sponsors are appealing Chief U.S. District Judge Vaughn Walker’s August ruling that overturned the 2008 law as a violation of gay and lesbian Californians’ civil rights. They argue that Walker ignored a U.S. Supreme Court precedent from 1973 that held the U.S. Constitution does not recognize marriage rights for gays.

Observers predicted the panel’s makeup makes it less likely Walker would be reversed.

“Anyone who follows the 9th Circuit closely would say that this a very good panel for the Prop 8 opponents and a very bad panel for its defenders,” said Arthur Hellman, a University of Pittsburgh School of Law professor who is an expert on the court. “I expect a 2-1 decision, with Reinhardt and Hawkins outvoting Smith.”

Proposition 8′s supporters had the same interpretation, and reiterated their plan to take the case to the U.S. Supreme Court, if necessary.

“Judge Reinhardt’s inclusion on the 9th Circuit panel adds more weight to what the Prop 8 Legal Defense team has said since this case was filed in federal court: We fully expect that it will ultimately be decided by the highest court in the land,” the California Family Council, which was part of the coalition of religious and conservative groups that backed the 2008 measure, said in a statement.

When they meet in San Francisco on Dec. 6, one of the issues the judges will consider is whether the ban’s backers had the authority to bring the appeal after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown decided not to challenge the lower court ruling.

Officials from conservative Imperial County have asked the 9th Circuit to allow them to represent the state’s interests if the panel decides that Proposition 8′s sponsors lack standing.

—  John Wright

Court allows military to continue enforcing DADT pending appeal

LISA LEFF  |  Associated Press

SAN FRANCISCO — A federal appeals court on Monday, Nov. 1 indefinitely extended its freeze on a judge’s order halting enforcement of the military’s “don’t ask, don’t tell” policy, heightening pressure on the Obama administration to persuade the U.S. Senate to repeal the law before a new Congress is sworn in.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals granted the U.S. government’s request for a stay while it challenges the trial court’s ruling that the ban on openly gay service members is unconstitutional.

The same panel, composed of two judges appointed by President Ronald Reagan and one appointed by President Bill Clinton, on Oct. 20 imposed a temporary hold keeping “don’t ask, don’t tell” in place.

Monday’s decision means gay Americans who disclose their sexual orientations still can’t enlist in the armed forces and can be investigated and ultimately discharged if they already are serving.

“We continue to warn service members that it is unsafe to come out as long as this law remains on the books,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network.

In an eight-page order, two judges said they were persuaded by the Department of Justice’s argument that U.S. District Court Judge Virginia Phillips’ worldwide injunction against the policy “will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change.”

“The public interest in enduring orderly change of this magnitude in the military — if that is what is to happen — strongly militates in favor of a stay,” Judges Diarmuid F. O’Scannlain and Stephen S. Trott wrote in their majority order. “Furthermore, if the administration is successful in persuading Congress to eliminate (the policy), this case and controversy will become moot.”

Another reason they gave for imposing the freeze was decisions by four other federal appeals courts that cast doubt on whether Phillips exceeded her authority and ignored existing legal precedents when she concluded gays could not serve in the military without having their First Amendment rights breached.

Judge William Fletcher entered a partial dissent, saying he would have preferred the panel had heard oral arguments before granting the stay. Fletcher said he thinks “don’t tell, don’t tell” should not be used to discharge any existing service members while the case was on appeal.

“Defendants would not be required during the pendency of the appeal to change their recruiting practices, to change their personnel manuals, or, subject only to the requirement that they not actually discharge anyone, otherwise to change their practices,” Fletcher said.

President Barack Obama repeatedly has said he opposes “don’t ask, don’t tell” but favors ending it legislatively instead of through the courts. Over the summer, he worked with Democrats to write a bill that would have lifted the ban, pending completion of a Defense Department review due Dec. 1. The legislation passed the House but was blocked in the Senate.

The president has pledged to push for another vote during Congress’ lame duck session after Tuesday’s elections.

“The president claims to want to see ‘don’t ask, don’t tell’ ended. It is time that he stop talking and start working to make a real difference for gay and lesbian Americans by pushing for repeal when Congress returns,” said R. Clarke Cooper, executive director of Log Cabin Republicans, the gay rights group that sued to overturn “don’t ask, don’t tell” in Phillips’ court,

The court ordered the government to submit its brief in its broader appeal by Jan. 24 and gave Log Cabin Republicans until Feb. 22 to reply. It did not schedule oral arguments in the case.

“For the reasons stated in the government’s submission to the appellate court, we believe the stay is appropriate,” Pentagon spokesman Bryan Whitman said.

—  John Wright