Judge Phillips rules against Obama Department of Justice re: DADT Stay of Injunction

Gauntlet thrown down…

Today Judge Phillips ruled against the Department of Justice by denying its request for a stay of injunction in Log Cabin Republicans vs United States of America.  Below please find statements from the Log Cabin Republicans and White & Case on the ruling. The order denying the stay as well as the transcript from yesterday’s hearing are both attached.

Clarke Cooper, Executive Director of Log Cabin Republicans

“Judge Phillips is right to stand with servicemembers by rejecting President Obama’s request to continue this discriminatory policy,” said R. Clarke Cooper, Executive Director of Log Cabin Republicans. “It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.  As this past week has shown, our military is well-equipped to adapt to open service, and eager to get on with the work of defending our freedom.  As Commander in Chief, the president should drop his defense of a policy which he knows undermines military readiness and threatens national security.  The president has said that ‘Don’t Ask, Don’t Tell’ will end on his watch, but is currently standing in the way of its demise.  Log Cabin Republicans will continue to fight this policy no matter how many obstacles he puts in the way.”

Dan Woods, White & Case

“We applaud Judge Phillips’s ruling denying the government’s request for a stay of injunction, as it brings us one step closer toward ending once and for all this unconstitutional policy that President Obama and Congress seem incapable or unwilling to end themselves,” said Dan Woods, White & Case partner who is representing Log Cabin Republicans in Log Cabin Republicans vs United States of America.  ”Meanwhile, homosexual servicemembers are fighting and dying today in two wars for their fellow Americans’ constitutional rights, while their own constitutional rights are being held hostage to an uncertain bureaucratic process that seems more interested in beancounting the trouble they would be put to from modifying their training materials than in protecting these servicemembers’ civil rights.”

SLDN:

Statement by Army veteran and SLDN Executive Director Aubrey Sarvis:

“By the judge keeping the injunction in place, lesbian and gay service members are protected another day, but the uncertainty has not gone away.  The Department of Justice will immediately ask the 9th Circuit to stay the injunction.  We’re talking about the careers of patriots, people who are on the frontlines serving our country – some of whom are highly decorated – and the court needs to keep the injunction in place.  As the DOJ fights to keep this unconstitutional and oppressive law, we are monitoring active-duty clients’ cases and fielding calls every day to our hotline.  During this interim period of uncertainty, service members must not come out.  Our service members need finality.  Given the uncertainty in the courts, we urge the Senate to act swiftly next month on repeal when they return to Washington.”

Servicemembers United:

WASHINGTON, D.C. – Servicemembers United, the nation’s largest organization of gay and lesbian troops and veterans, issued the following statement today in response to District Court Judge Virginia A. Phillips’ ruling denying the government’s request to stay her injunction:

“Given that seven days have passed since enforcement of the ‘Don’t Ask, Don’t Tell’ policy was halted, those seeking to reinstate the policy have been proven flat wrong in their predictions of ‘enormous consequences.’ Judge Phillips recognized this contradiction in the Justice Department’s arguments and once again refused to abdicate her duty to reach an objective conclusion based on the evidence before her,” said Alexander Nicholson, Executive Director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans. “Once again, we call on President Obama to stop defending the ‘Don’t Ask, Don’t Tell’ policy in court and we reiterate that it is the President, not the Attorney General, who has the final word on this decision.”

HRC:

Human Rights Campaign President Joe Solmonese issued the following statement:

“Judge Phillips once again did the right thing for our national security. We call on the administration not to appeal her decision. DADT is an unconscionable law that forces brave lesbian and gay Americans to serve in silence and has forced 14,000 patriotic Americans out of the military. The law is detrimental, not only to our national security, but also to the core American value of fairness.”

HRC urges all fair-minded Americans to sign an open letter to Attorney General Eric Holder, calling on him not to defend DADT at:https://secure3.convio.net/hrc/site/Advocacy?cmd=display&page=UserAction&id=940

Statement by Rea Carey, Executive Director, National Gay and Lesbian Task Force:

“Judge Phillips again rejected the government’s bunk that it’s necessary this discriminatory policy remain in effect any longer. She and the overwhelming majority of Americans have rightly concluded it’s time to make ‘Don’t Ask, Don’t Tell’ a policy of the past. Our elected officials have diddled around and played the delay game as the careers of thousands of courageous, patriotic service members have been destroyed. Phillips said enough is enough, and we couldn’t agree more.”

Prop 8 Trial Tracker is also following.
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FTC Rules Pom Wonderful As Deceptive

Continuing their campaign against food items falsely claiming to bring good health, the Federal Trade Commission has filed a complaint against the make of Pom Wonderful for “making false and unsubstantiated claims that their products will prevent or treat heart disease, prostate cancer, and erectile dysfunction.”

The FTC complaint alleges that POM Wonderful’s heart disease claims are false and unsubstantiated because many of the scientific studies conducted by POM Wonderful did not show heart disease benefit from use of its products. It alleges that the prostate cancer claims are false and unsubstantiated because, among other reasons, the study POM Wonderful relied on was neither “blinded” nor controlled. Finally, it alleges that the erectile dysfunction claims are false and unsubstantiated because the study on which the company relied did not show that POM Juice was any more effective than a placebo.

VitaminWater got the same treatment earlier this month.

Joe. My. God.

—  John Wright

Judge rules DADT discharge of Major Margaret Witt unconstitutional – she must be reinstated

AP:

A federal judge says the Air Force violated the constitutional rights of a highly decorated flight nurse when it discharged her for being gay, and ordered that she be given her job back as soon as possible.

U.S. District Judge Ronald Leighton issued his highly anticipated ruling Friday in the case of former Maj. Margaret Witt. She was discharged under the “don’t ask, don’t tell” policy on gays serving in the military and sued to get her job back.

In 2008, a federal appeals court panel ruled in her case that the military can’t discharge people for being gay unless it proves their firing furthered military goals.

After a six-day trial, the judge said testimony proved Witt was an outstanding nurse and her reinstatement would do nothing to hurt unit morale.

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Florida Court Rules Adoption Ban Unconstitutional

In a major victory for lesbian and gay Floridians, the State’s intermediate Court of Appeals ruled in Florida Dept. of Children and Families v. In re: Matter of Adoption of X.X.G. and N.R.G. that Florida’s statute excluding homosexuals from adopting was unconstitutional under the Florida Constitution.  The unanimous three judge panel determined that the State of Florida, which defended the statute, failed to demonstrate that the statute had even the “rational basis” needed to uphold the law.

The plaintiff in the case was a gay man who provided foster care for two neglected children and then sought to adopt them permanently.  The Florida Department of Children and Families denied his request because of Florida’s law banning homosexual adoption.  The Department of Children and Families conceded during the trial that it would have allowed for the adoption but for the existence of the statute.  On top of that, many other groups of people are allowed to adopt in Florida.  Lesbians and gay men were the only group categorically excluded from adopting, but were still allowed to serve as foster parents or guardians.

The Court reviewed the evidence presented by the potential adoptive father and found it to be one sided in his favor.  The Court of Appeals quoted the trial court in its opinion, noting that “[t]hese reports and studies find that there are no differences in the parenting of homosexuals or the adjustment of their children.”  The court also examined the evidence provided by the two experts for the Department of Children and Family Services and found them to be out of step with the scientific community and lacking in objectivity in their conclusions regarding lesbian and gay parents.  One of these experts was criticized previously for citing the work of a psychologist who was censured by the American Psychological Association for misreporting evidence regarding homosexual households.

This ruling is particularly significant for lesbian and gay Floridians because their state was the last in the nation with a law explicitly excluding adoption by gay men and lesbians.  This victory, pending the possible appeal, leaves Mississippi and Utah as the only states with adoption bans for same-sex couples.  State courts in Michigan have ruled that unmarried individuals may not jointly petition to adopt.  And in 2008, Arkansas voters approved a statutory ban on adoption and foster parenting by unmarried individuals cohabiting with a sexual partner. The Arkansas ban was declared unconstitutional by a county circuit court in 2010, but has been appealed to the state Supreme Court.  In Florida, a previous challenge to the ban under the United States Constitution was rejected in Eleventh Circuit Court of Appeals in 1994.  Governor Charlie Crist of Florida is considering dropping the state’s lawsuit defending the law and personally opposes it.  However, the Department of Children and Families reportedly opposes his position, and it is unclear currently whether the state will appeal this decision to the Florida Supreme Court.


Human Rights Campaign | HRC Back Story

—  John Wright

Judge Rules DADT Unconstitutional

DADT2 x390 (Getty) I Advocate.comIn a case brought by the Log Cabin Republicans, a federal judge in Riverside, Calif., ruled in an 85-page opinion that “don’t ask, don’t tell” violates the First and Fifth amendments to the U.S. Constitution.
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—  John Wright

BREAKING: Judge rules DADT is unconstitutional

The judge in the Log Cabin Republican’s case against Don’t Ask, Don’t Tell has issued her ruling. DADT is unconstitutional:

A federal judge in Riverside declared the U.S. military’s ban on openly gay service members unconstitutional Thursday, saying the “don’t ask, don’t tell” policy violates the 1st Amendment rights of lesbians and gay men.

U.S. District Court Judge Virginia A. Phillips said the policy banning gays did not preserve military readiness, contrary to what many supporters have argued, saying evidence shows that the policy in fact had a “direct and deleterious effect’’ on the military.

Phillips issued an injunction barring the government from enforcing the policy. However, the U.S. Department of Justice, which defended “don’t ask, don’t tell” during a two-week trial in Riverside, will have an opportunity to appeal that decision.

Have to offer congrats to LCR. Wow.

And, is Obama’s DOJ, which lost this case, really going to appeal this ruling? Really.

Get this law off the books. It’s not only discriminatory. It’s unconstitutional.

UPDATE: The Judge ruled that DADT violates the First and Fifth amendments and the plaintiffs are entitled to a permanent injunction “barring its enforcement.” LCR has seven days to submit a “Proposed Judgment.” The DOJ will have seven days to submit its objections to that. Here’s an idea for Obama’s DOJ (maybe the DOJ’s so-called LGBT liaison Matt Nosanchuk can shop it around): Don’t object to the proposed judgment. Don’t ask for a stay of the judgment or the injunction. And don’t appeal this decision. Let DADT die.)

UPDATE 2: Here’s the statement from Servicemembers United’s Executive Director Alex Nicholson, one of the parties in the case:

“This is an historic moment and an historic ruling for the gay military community,” said Alexander Nicholson, Executive Director of Servicemembers United and a multi-lingual U.S. Army interrogator who was discharged under ‘Don’t Ask, Don’t Tell.’ “As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication.”

Thank you, Alex Nicholson.

UPDATE 3: Statements from LCR and its lawyer:

R. Clarke Cooper, Executive Director, Log Cabin Republicans & Liberty Education Forum

“As an American, a veteran and an Army reserve officer, I am proud the court ruled that the arcane Don’t Ask Don’t Tell statute violates the Constitution. Today, the ruling is not just a win for Log Cabin Republican servicemembers, but all American servicemembers.”

Dan Woods, White & Case partner who led the matter for Log Cabin Republicans

“We are delighted with the court’s ruling in favor of Log Cabin Republicans in this important case. The court’s opinion finds that “Don’t Ask, Don’t Tell” is unconstitutional, and the court will issue a permanent injunction preventing the government from further enforcement of this unconstitutional statute. This is a major victory in the fight for equality and means that military service will be available to all Americans, regardless of their sexual orientation.”

Here’s the decision:
Decision finding DADT is unconstitutional.




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—  John Wright

Texas Court of Appeals Rules Same-Sex Couple Can Not Seek an In-State Divorce

Today, the Texas Court of Appeals for the Fifth District, located in Dallas, ruled that a same-sex couple that had married in Massachusetts could not legally seek a divorce, following their move to Texas.  The case,  entitled In re the Marriage of J.B. and H.B.,  was appealed by the state following a victory in the lower court in which the judge had granted the two men a divorce and declared Texas’ mini-Defense of Marriage Act (mini-DOMA) as violating the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.  The state argued that since Texas did not recognize the men’s marriage as valid, they were not eligible for the remedy of divorce.  Specifically, Texas claimed that the courts did not have jurisdiction, or the right and power, to even hear the case and thus it should be dismissed.

The Appeals Court looked to the language of the Texas mini-DOMA in deciding that it was clear that the legislature intended to declare same-sex marriages illegal and thus the court could not acknowledge their existence, even for the purpose of granting a divorce from a legal marriage in another state.  The court denied the principle of comity, which requires that courts in one state give effect to the laws of another state, stating that it would not extend comity to other states, if doing so would violate Texas public policy.  The court rejected rulings from other states, including New York, which allowed such divorces, even though same-sex couples may not yet legally marry in New York.  It also stated that there was no fundamental right to same-sex marriage and that sexual orientation was not a suspect classification, denying that the mini-DOMA in Texas violated the Fourteenth Amendment.  This ruling stands in sharp contrast to that issued by Judge Walker in the California Prop 8 decision, Perry v. Schwarzenegger, which held that such a right existed and that sexual orientation should be protected as a suspect class. 

A second Texas case, in which a judge in Austin granted a divorce to a lesbian couple, is likely to be appeal by the State to the Texas Court of Appeals for the Third District, with one or both of these cases potentially winding up in the Texas Supreme Court.

The Texas case is but one decision in an ongoing judicial debate across the nation regarding how much deference states with no relationship recognition or even explicit laws on the books which deny any rights at all to same-sex couples must accord those states which allow such partnerships.  Returning to the state that issues the marriage license is not an option for most couples as all states currently have a residency requirement for divorce. Generally, at least one half of the couple must live in the state six months or more in order for the state to grant a divorce.  Relationship termination is an essential part of allowing both individuals to move on with their lives. Until the federal Defense of Marriage Act is repeal by Congress or struck down by the Supreme Court, couples will continue to be vulnerable during the most difficult period in their relationship.


Human Rights Campaign | HRC Back Story

—  John Wright

Judge Rules Against Anti-Gay Student In Georgia

Remember Jennifer Keeton, the anti-gay Augusta State University student who sued the school last month claiming that the public institution violated her First Amendment rights by forcing her to accept homosexuality in order to graduate from her counselor education program? ASU wanted to set Keeton up for a remediation program that would "address issues of multicultural competence and develop understanding and empathy." Well a federal court has found that the school's requirement is "academically legitimate" and she could get kicked out of school if she doesn't participate in the program.

The Augusta Chronicle reports on U.S. District Judge Randal Hall's ruling:

6a00d8341c730253ef013485aac774970c Professors asked Keeton to complete the remediation plan after she said she opposed homosexuality and would tell gay clients "their behavior is morally wrong and then help the client change that behavior," according to an affidavit filed in the case. Keeton filed a lawsuit against the school in July, alleging the requirement was viewpoint discrimination and a violation of her First Amendment rights.

Hall ruled that Keeton "failed to clearly establish her high burden of persuasion of a 'substantial likelihood' of success of the merits of her case."

She provided no evidence that ASU faculty imposed the remediation plan because they personally disagreed with her views, Hall said. In an Aug. 11 hearing, ASU professors testified that the plan was not a punishment for voicing her beliefs, but a tool to teach Keeton how to counsel clients while not imposing her views.

"All three professors testified that they never told (Keeton) that she was required to change her religious beliefs in order to stay in the counseling program," Hall wrote.

Hall summed the situation up best in his ruling: "It was not (Keeton's) personal beliefs that were their concern, but rather only her inability to separate her personal beliefs in the judgment-free zone of a professional counseling situation."


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—  John Wright

Judge Rules Against Antigay Grad Student

JENNIFER KEETON X390 (ALLIANCE DEFENSE FUND) | ADVOCATE.COMA federal judge has ruled against graduate student Jennifer Keeton, who
refused to read material about counseling gays and increase her exposure
to that community because it goes against her beliefs.
Advocate.com: Daily News

—  John Wright

MEXICO: Supreme Court Rules That All States Must Recognize Same-Sex Marriage

The wins keep pouring in! Late this afternoon Mexico’s Supreme Court ruled that all 31 states must recognize same-sex marriages performed in the nation’s capital, which at the moment is the only place they are legal. Mexico City is a separate federal entity, much like Washington, DC.

In a 9-2 decision, the tribunal cited an article of the constitution requiring states to recognize legal contracts drawn up elsewhere. It did not specify what degree of recognition must be granted to same-sex couples. Mexico City’s same-sex marriage law, enacted in March, extends to wedded gay couples the right to adopt children, to jointly apply for bank loans, to inherit wealth and to be covered by their spouses’ insurance policies. Some of those may end up applying only in the capital. The Supreme Court ruled last week that same-sex weddings are constitutional — though it is holding separate discussions this week on the adoption clause. One of the justices, Sergio Aguirre, argued against adoptions by same-sex couples Tuesday, saying children might suffer discrimination as a result.

The ruling does not force any of the states to allow gay marriage, but surely helps clears the way for the more liberal parts of the country to move forward.

Joe. My. God.

—  John Wright