The Servicemembers Legal Defense Network (SLDN) has created a new legal guide, Freedom to Serve: The Definitive Guide to LGBT Military Service, to help navigate the laws and policies related to military service that will exist following the repeal of Don’t Ask, Don’t Tell (DADT). It is downloadable at www.sldn.org, the SLDN website which has been redesigned for the post-DADT environment. The guide and website cover SLDN’s legal services, and issues such as standards of conduct, benefits for spouses and families of service members, discharge upgrades, and veterans’ benefits.
SLDN Legal Director David McKean:
The information contained in this legal guide will help service members, prospective service members, their families, and friends make informed decisions about how to serve successfully as we move beyond ‘Don’t Ask, Don’t Tell.’ It will also assist them in understanding how to protect themselves when necessary and how to respond if they are targeted in any way for their actual or perceived sexual orientation or gender identity.
The new guidance will become effective on September 20 when the DADT repeal goes into effect. The clock is ticking.
Saturday was the 70th anniversary of President Roosevelt’s issuance of Executive Order 8802, which prohibited racial discrimination by defense contractors. Last week, Congressman Bobby Scott hosted a press conference and briefing in honor of the anniversary of this event, which marked the first time a U.S. president had acted to combat discrimination by private employers who were using federal taxpayer money. Future presidents expanded on President Roosevelt’s action and added to its protections.
However, this was more than just a celebratory event of an important civil rights milestone: it was a call to action to correct an erosion of equal employment opportunity law that has been in effect since 2002. That’s when President Bush signed an Executive Order that made discrimination on the basis of religion by faith-based organizations using federal taxpayer money legal. In so doing, he reversed our nation’s continuous expansion of the promise of equal protection and opened a gaping hole in our nation’s civil rights protections. Religious entities had always been able to discriminate based on religion using their own money, but never to use taxpayer money to do so.
All the panelists were united in asking President Obama to fulfill his campaign promise of restoring the law. On the panel were: Congressman Bobby Scott (convener of the event); Congressman Jerrold Nadler; Professor Eric Arnesen (professor of history at George Washington University and biographer of civil rights and labor leader A. Philip Randolph, whose activism prompted FDR’s executive order); Rabbi David Saperstein (Director of the Religious Action Center of Reform Judaism, and also a board member of our affiliated People For the American Way Foundation); Barbara Arnwine (Executive Director of the Lawyers’ Committee for Civil Rights Under Law); Hilary Shelton (Director of the NAACP Washington Bureau); and Rev. Dr. Paul L. Brown, Sr. (Pastor of Miles Memorial CME Church and member of People For the American Way’s African American Ministers In Action).
Among other things, speakers discussed how employment discrimination harms the victims and society as a whole; warned that religion can easily be used as a proxy for race, sex, sexual orientation, and gender identity; condemned discrimination paid for by the tax dollars of its victims; asked why the religion of someone ladling out soup for the hungry should matter; and warned of the dangerous consequences to churches that want to retain federal funding they have become dependent on. As the last speaker, Rev. Dr. Brown opened a window into his daily work helping the hungry and the homeless, the “least and the lost,” and strongly condemned federally funded discrimination.
When he was running for President, then-Senator Obama promised to reverse President Bush’s policy, but he has yet to do so. What better time than the anniversary of the issuance of Executive Order 8802 for President Obama to put our nation back on the right road and restore through executive order the prohibition against federally funded discrimination? Yesterday, People For the American Way and African American Ministers In Action joined more than 50 other civil rights and religious organizations asking him to do just that.
In October and December of 2010, the Department of Education took a stand for LGBT youth by issuing guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, the Department has made clear that harassment on these grounds, under certain circumstances, violates Title IX.
Yesterday, the Department of Education released new guidance, this time focusing on the right of students under the Equal Access Act to form extracurricular clubs, including gay-straight alliances (GSAs).
Gay-straight alliances (GSAs) and similar student-initiated groups addressing LGBT issues can play an important role in promoting safer schools and creating more welcoming learning environments. Nationwide, students are forming these groups in part to combat bullying and harassment of LGBT students and to promote understanding and respect in the school community. Although the efforts of these groups focus primarily on the needs of LGBT students, students who have LGBT family members and friends, and students who are perceived to be LGBT, messages of respect, tolerance, and inclusion benefit all our students. By encouraging dialogue and providing supportive resources, these groups can help make schools safe and affirming environments for everyone.
[ . . . ]
It is important to remember, therefore, that the Equal Access Act’s requirements are a bare legal minimum. I invite and encourage you to go beyond what the law requires in order to increase students’ sense of belonging in the school and to help students, teachers, and parents recognize the core values behind our principles of free speech.
The announcement was met with strong support across the safe schools community.
Eliza Byard, Executive Director, Gay, Lesbian, and Straight Education Network:
Secretary Duncan's Dear Colleague letter is a clear signal to schools and school districts that they may not discriminate against students who seek to form Gay-Straight Alliances. We are grateful to the Department of Education for supporting students' rights, attempting to prevent discrimination and affirming the positive contributions Gay-Straight Alliances make to the life of our schools, right alongside other non-curricular clubs.
Laura Murphy, Director, ACLU Washington Legislative Office:
Gay-straight alliances can play a crucial role in improving students’ lives. Just as with other extra-curricular groups and clubs, students have a federal legal right to form GSAs. Our public schools should be promoting fairness and acceptance, not discrimination.
Gay-Straight Alliances are powerful forces in our schools. Not only do they offer a safe and supportive environment for LGBT students but they allow straight allies to show their support. One of the most powerful impacts that a GSA can have, however, is on those students who aren't even members - the very existence of a GSA shows students who may still be coming to terms with their orientations that someone at their school cares.
Following tweets and transcripts of this morning’s hearing in the Prop 8 case, I started to feel like I was reading a celebrity magazine written by lawyers.
The issue at stake in the hearing was whether now-retired Judge Vaughn Walker, who overturned Prop 8’s ban on gay marriage last year, should have recused himself from the marriage equality case because he himself is gay. Judge Walker’s sexual orientation was widely known at the time of the decision, and certainly didn’t escape the notice of right-wing critics of marriage equality, but lawyers defending Prop 8 decided not to bring it up at the time.
Then, after Walker handed down a powerful ruling against the anti-gay measure, they changed their minds. Perhaps sensing that they couldn’t argue that Judge Walker was disqualified from the case simply because he is gay, Prop 8’s backers instead decided to argue that the judge should have recused himself because he was in a long-term relationship and may someday have wanted to get married, thus benefiting from his own ruling.
This meant that the Prop 8 attorneys first had to somehow prove that Judge Walker intended to marry his partner of many years, and then demonstrate that if he did intend to get married himself he shouldn’t have judged the case. Since Walker hadn’t granted them a tell-all interview, the task of proving that the judge intended to get married became a game of speculation and assumption, and led to exchanges like this one, roughly transcribed with comments by Courage Campaign (W is the judge, James Ware and C is Charles Cooper, the attorney defending Prop 8):
W: What is fact you rely upon that judge walker was in a relationship for purposes of marriage?
C: The fact that he has publicly announced that he is and has been in a relationship with another person?
W: So if you are in a ten year relationship with another person, that is for purposes of marriage?
(laughter—this Cooper is so silly. He should do a Mennen deodorant ad, though. I think he’s still dry.)
W: You would concede that you could be in a long term relationship without being in it for purposes of marriage?
W: What distinguishes it?
C: Very fact that two individuals are in kind of relationship Walker has…
W: What distinguishes between two?
C: There are platonic friendships that do not lead to marriage. [laughter]
W: What do you mean platonic?
C: Non-intimate, non-sexual. Clear understanding of media reports…
W: You are saying that length of relationship alone converts to marriage relationship?
C: Yes. Bespeaks commitment. All of these have been used interchangeably. Take pains to say they are in long term relationships.
W: Their relief was not to stay in long term relationship. Nothing threatened their long term relationship. Neither they nor Walker threatened. They sought to change relationship. What fact would cite to the court that Walker sought to change his relationship?
C: (Stumbles…) There are several points I would make that a reasonable person with knowledge that judge walker would be expected to have an interest in marrying his long time partner. (Thought police, please) Judge Walker similarly situated for purpose of marriage just as plaintiffs.
This is the kind of unsubstantiated speculation about a person’s love life that you’d expect from a celeb magazine profile of Jennifer Aniston, not a serious case in federal court. The basic logic of their argument not only makes no sense in the first place – since they argue that same-sex marriage hurts heterosexual marriage, it follows that heterosexual judges would have to recuse themselves as well (more on that here). But the fact that Prop 8’s proponents have resorted to baseless theorizing about the judge’s personal life truly underscores just how weak a case they have they have.
It is also telling that the “dirt” that Cooper has dug up about Walker isn’t exactly scandalous…in fact, his matter-of-fact assumption that two people in a long-term, committed relationship might want to get married can be seen as a strong argument in favor of letting them do just that.
For their part, the pro-equality camp argued that Judge Walker shouldn’t have had to recuse himself from the case, regardless of who he was planning or not planning to marry.
The judge has promised a decision soon, possibly within a day.
Tennessee really seems to be going down the rabbit hole with their recent anti-gay legislation. Last month, a bill advanced to their state Senate, the “Don’t Say Gay” bill, which would prohibit educators from discussing any sexual orientation other than heterosexuality with students in kindergarten through eighth grade. This not only applies to lessons in classrooms, but to all discussions between educators and students. Any acknowledgement that gay people exist is officially prohibited, a cruel effort to isolate and declare as abnormal any children who are gay or who have gay family members (including parents).
This week, Gov. Bill Haslam signed a bill prohibiting local governments from enacting anti-discrimination laws that are stricter than those in state law. This new law overturns the recent Nashville Metro Council ordinance requiring businesses contracting with the city to prohibit discrimination based on sexual orientation and gender identity. Tennessee state law prohibits discrimination based on race, creed, color, religion, sex, age, or national origin, but that leaves out a number of groups who are still facing discrimination with no legal support.
Haslam told a reporter, "We're not in favor of discrimination in any form at all," but actions speak louder than words, and Haslam’s support of this legislation certainly screams out loud and clear.
Nashville attorney Abby Rubenfeld is currently putting together a lawsuit to fight this legislation. She notes that the bill is homophobic and targeted at LGBT workers, but it would also affect veterans, disabled people, and other groups that aren’t protected by the state anti-discrimination law.
Yesterday, the House of Representatives passed the House Armed Services Committee Authorization bill, which included three amendments designed to delay the repeal of the discriminatory “Don’t Ask, Don’t Tell” policy.
With the Senate taking up the bill, Rep. Randy Forbes, along with Bishop Harry Jackson and a group of right-wing pastors, held a press conference to encourage the Senate to pass the pro-DADT amendments.
Attempting to seem semi-reasonable, Jackson began the conference by claiming that amendments intending to make the repeal of DADT more difficult and time-consuming weren’t about DADT itself, but instead about “clarity.”
That line of reasoning lasted all of 15 minutes. By the time Q&A rolled around, Jackson and the Religious Right figures that had joined him used all of the same tired arguments that have been used against DADT in the past. When asked if the repeal of DADT would hurt recruitment, Bishop John Neal claimed that he wasn’t sure, but what he was really worried about was the “close quarters” that soldiers have to share, and what would happen when there was “only one spout” on the shower.
Multiple speakers claimed that “no one should be marginalized for their religious beliefs,” but they all seem to believe that marginalizing people for their sexual orientation is perfectly acceptable. One of the speakers, John Neil, went so far as to claim that the military discriminates all the time, by not allowing, for example, extraordinarily tall people to pilot cramped fighter jets. Because that’s exactly the same situation.
Despite their claims to be promoting the rights of chaplains, this group showed that their real goal was restricting the rights of the LGBT community, going so far as to assert that Martin Luther King Jr. would disapprove of same-sex marriage:
Jackson: There were members of his family who were for gay marriage, others were against. I know this: King basically spoke from two vantage points that he thought were very, very sacred within the American culture - one was the Bible and the other was the Constitution. And I think what we're dealing with here is that from a biblical perspective, King no doubt would have been with us biblically. And I think, again, the lines of what is exactly the right of an American to do, I've got a hard time believing that "the pursuit of happiness" crosses into some of these areas. So I think that King would be with us, as a preacher first.Question: Just to clarify: you're saying Dr. King would be against gay marriage?
Jackson: Yes. Very specifically, yes. Because it's against what is clearly written in Scripture. And if you listen to any of his messages, that clarion call to scriptural accountability even to the point when his own house was firebombed and folks came up in Montgomery armed and ready to go fight folks, he said "no, no, no, we will turn the other cheek." So there was not just a tacit biblical acceptance or kind of whitewashing, if I can use that phrase, certain kinds of behaviors and say this is Christian, this is not. I think there was an inherent commitment to those issues in our social culture.
This morning, Rep. Trent Franks, chairman of the House Judiciary Subcommittee on the Constitution, called a hearing on “Defending Marriage” to examine the Obama Administration’s decision to stop defending the so-called “Defense of Marriage Act” in courts.
Franks is pretty, um, far to the right, so it’s no surprise that one of the three witnesses he called to the hearing was Maggie Gallagher, chair of the National Organization for Marriage.
As Justin wrote earlier, Gallagher hit a bunch of the big themes of the Religious Right’s anti-gay activism, but she also dwelled on one argument peculiar to the anti-marriage equality crowd: that marriage exists solely as a structure for procreation:
If we accept, as DOMA explicitly does, that this is a core purpose of marriage, then treating same-sex unions as marriages makes little sense. If marriage as a public and legal institution is oriented towards protecting children by increasing the likelihood they are born to and raised by the man and the woman whose union made them, then same-sex couples do not fit. If same-sex couples “fit” the public definition of marriage, then marriage is no longer about responsible procreation. Same-sex marriage cuts marriage as a public idea off from these deep roots in the natural family. Over time the law will re-educate the next generation that these ancient and honorable ideals underlying marriage no longer apply. Gay marriage, as Judge Walker ruled in wrongly striking down Prop 8, is based on the idea that neither biology nor gender matters to children. Same-sex marriage repudiates the public’s interest in trying to see that children are, to the extent possible, raised by the man and woman whose bodies made them in a loving single family.
The argument that marriage exists solely for having children is, needless to say, flimsy – and has been pretty well demolished in a few marriage equality trials. I’m just going to share this extended exchange from last year’s Proposition 8 trial, in which Judge Vaughn Walker reduces the lawyer defending Prop 8 into babbling incoherence as he tries to defend the marriage-is-only-for-procreation argument:
THE COURT: And my point was that there are a number of heterosexual couples who do not naturally procreate, who require the intervention of some third party or some medical assistance of some kind.
MR. COOPER: Yes, your Honor. And it is not those opposite-sex couples either that the state is concerned about in terms of -- in terms of the threats to society and the natural concerns that society has from irresponsible procreation.
THE COURT: What's the threat to society of people choosing to have medical assistance in order to conceive children?
MR. COOPER: There isn't one there, your Honor. I mean, it's -- it is the -- again, it's irresponsible procreation. The procreation that comes about casually. And often again, as the Eighth Circuit put it, often by accident, unintentionally, unintentionally. The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn't something that is inconsistent with the purposes of -- the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.
And, your Honor, with respect to -- and you asked a question about this in your written questions. Even with respect to the opposite-sex couple where one of the partners is infertile, encouraging that couple to get married, trying to channel that couple into marriage furthers the procreative purposes and policies underlying the traditional definition of marriage in the sense that if that couple gets married, then it -- then all of the social norms that come with marriage to encourage that couple to stay together and to be faithful to one another operate to society's benefit in the sense that the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation.
THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.
MR. COOPER: Those purposes, your Honor, are – we haven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the – with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.
To summarize, Cooper, when pressed on the issue, ended up arguing that opposite-sex couples should get married so they don’t go around “irresponsibly procreating” with people they aren’t married to…but same-sex couples aren’t in danger of irresponsibly procreating, so they don’t need to get married….and that somehow, if gay couples were to get married, they would drive heterosexuals away from marriage, resulting in them having babies out of wedlock.
To be clear, this is the primary argument that opponents of marriage equality have in their toolkit.
Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation. Moreover, that discrimination continues today and limits their political influence.
[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)
In a step forward for LGBT equality, the Obama Administration's new hospital visitation regulations go into effect today. Under the rules, hospitals that participate in Medicare and Medicaid can no longer deny visitation privileges based on factors including sexual orientation or gender identity. To forcibly separate loving couples when one of them is sick or even dying is cruel and wrong.
The Deputy Director of the White House Office of Public Engagement writes:
This significant policy change is due in no small part to the journeys of two incredibly courageous and passionate women, Janice Langbehn and Charlene Strong. Both lived through unimaginable experiences with the loss of their wives and life partners. While I never had the opportunity to meet Janice's wife Lisa Pond, or Charlene's wife Kate Fleming, I have had the honor to meet and work with Janice and Charlene. I want to thank them for bringing us all into their lives and for sharing themselves and their families with us, and for using their voices to make lives better for LGBT families.
To have a White House publication referring to "Janice's wife Lisa" or "Charlene's wife Kate" is no small indication of societal change. Words have power, and the more people get used to hearing juxtapositions like these, the less alien the idea becomes.
Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:
[Interviewer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.
The Huffington Post notes:
Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.
Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.
Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)
When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.
Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.
Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.
People For the American Way attended today’s enrollment ceremony for the Don’t Ask, Don’t Tell repeal bill. Representatives and Senators stood alongside those discharged under this discriminatory policy to formally send the bill to President Obama for his signing. Each should be commended for their dedication to this cause, especially Representative Patrick Murphy (D-PA8), a veteran himself and the lead House sponsor of the Don't Ask, Don't Tell Repeal Act of 2010. From CNN:
Earlier, Democratic Rep. Patrick Murphy of Pennsylvania told the gathering of an e-mail he received from a company commander in Afghanistan, who mentioned how he often had to counsel soldiers who received divorce papers or "Dear John" letters from spouses or opposite-sex partners.
Murphy continued: "This young company commander, this captain, on his fourth deployment, wrote in that e-mail saying, 'I never thought I'd see the day when I got one of those letters myself. And I'm sitting here at three o'clock in the morning in Kabul, Afghanistan, and I have no where to go because I happen to be gay, and I can't walk to the chaplain, and I can't go to a battle buddy, and I can't walk to my commander's office, so I'm sitting here cradling my 9 mm pistol thinking about blowing my brains out. But I read this article about this Iraq war veteran named Patrick Murphy from Pennsylvania that's fighting for me, and it gives me hope.'"
House Majority Leader Steny Hoyer (D-MD5) had this to say about the American promise of equality for all.
This one, in particular.
For those who are worried about the radial homosexual agenda, let me put them on notice – two down, two to go.
Representative Frank’s message is simple.
LGBT equality advocates aren’t working some nefarious plot. What the Right labels as radical isn’t radical at all. It’s about fairness, freedom, and the Constitution. It’s about core values and fundamental rights that all Americans, regardless of sexual orientation or gender identity, hold dear and should enjoy.
There were many strong speeches during the House debate on repealing Don’t Ask, Don’t Tell. Part 1. Part 2.
I wanted to share three highlights with you now.
Representative Patrick Murphy (D-PA8) is the lead sponsor of the Don't Ask, Don't Tell Repeal Act of 2010. He shared his personal experience: “When I deployed to Iraq as a captain with the 82nd Airborne Division, my team and I didn't care about someone else's sexual orientation. We cared whether everyone could do their job so we could all come home alive.”
Representative Al Green (D-TX9), a veteran civil rights advocate, is heading into his 4th term in Congress. He fought on a battlefield of a different sort: “Mr. Speaker, life has prepared me for this vote. When you have had to sit at the back of the bus, in the balcony of the movie and have had to stand in a line for colored only, then you are prepared for this vote.”
But there’s perhaps no more passionate a civil rights voice serving in Congress today than Representative John Lewis (D-GA5), who led marchers across the Edmund Pettus Bridge in what’s since become known as Bloody Sunday. His plea was simple: “Vote ‘yes’ because discrimination is wrong.”
A new poll from ABC News and the Washington Post shows that a staggering 77% of Americans believe that Congress should let gay and lesbian Americans serve openly in the military. The poll, conducted from December 9 to 12, reflects previous surveys that show overwhelming support for repealing the military’s Don’t Ask Don’t Tell policy. Even self-described Republicans (74%), conservatives (67%), and white evangelical Christians (70%) believe that gay and lesbian soldiers who publicly disclose their sexual orientation should be allowed to serve.
Just as the vast majority of Americans think that the military should not discriminate against gay and lesbian soldiers, a Pentagon study showed that the majority of military service members do not oppose repealing Don’t Ask Don’t Tell.
Today the House of Representatives is set to vote today on a stand-alone bill to repeal Don’t Ask Don’t Tell introduced by Congressmen Steny Hoyer (D-MD) and Patrick Murphy (D-PA), an Iraq war veteran. If the bill wins approval in the House, the measure will be taken up in the Senate with the support of a bipartisan group of Senators.
With the military leadership and service members and the American people all in agreement that it is time to drop Don’t Ask Don’t Tell, the only thing that stands in the way of the discriminatory policy’s repeal are Senate Republicans who want to obstruct legislative action no matter the cost.
• Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don’t Ask, Don’t Tell"
• WESTAT Survey Report: Support to the DOD Comprehensive Review Working Group Analyzing the Impact of Repealing “Don’t Ask, Don’t Tell”RAND Report 2010: Sexual Orientation and the U.S. Military Personnel Policy. An Update of RAND's 1993 Study
Today, the Senate Armed Services Committee concluded the first of two days of hearings on the report. Perhaps most notable was Senator McCain’s performance. It appears his new “concern” is that Congress hasn’t been given enough time to review the issue. He objected to having been given only a few minutes with Defense Secretary Robert Gates.
As you can see from the CQ Congressional Transcript, Senator McCain fails to recognize the Secretary’s scheduling conflict; obviously they can’t ask him questions if he’s not in the room. He fails to recognize that he hasn’t just had the 36 hours since the report’s release to review the issue; he’s had almost two years of the Obama Administration, debate during the presidential campaign before that, and a full 17 years since Don’t Ask, Don’t Tell’s original enactment. What exactly is Senator McCain waiting for?
One word: WikiLeaks.
Not one bit of connection to Don’t Ask, Don’t Tell there. Yet, instead of using every second of his precious first round time with Secretary Gates, Senator McCain took time at the end to question the Secretary on the WikiLeaks controversy. And that wasn’t the last time you heard WikiLeaks mentioned today.
Ripe for oversight? Yes.
Topic of today’s hearing? No.
But let’s not end on a sour note.
Secretary Gates and Joint Chiefs Chairman Admiral Mike Mullen (who were joined by the Honorable Jeh C. Johnson and General Carter F. Ham, USA, the co-chairs of the Pentagon’s Comprehensive Review Working Group) were strong in their resolve for repeal.
Mullen -- who said he believes personally and professionally that repealing the law is the right thing to do -- said the repeal would be the only change the military services would experience as a result.
“Nothing will change about our standards of conduct,” the chairman said. “Nothing will change about the dignity and the fairness and the equality with which we treat our people. And nothing will change about the manner in which we deal with those who cannot abide by these standards.”
For some, Mullen told the senators, the debate on the issue is all about gray areas.
“There is no gray area here,” he said. “We treat each other with respect, or we find another place to work. Period.”
Well said, Admiral Mullen.
Tomorrow brings the testimony of the chiefs of the various armed services. If you’d like to watch, check out C-SPAN 3 or the Committee’s own webcast. An archive of today’s webcast is available here.
Opposition to the repeal of Don’t Ask Don’t Tell has ranged from subtle and outright homophobia to claims that the House, in passing repeal, was “dissing the troops.” Many Republican senators who voted to stop the repeal of Don’t Ask Don’t Tell from coming to a vote earlier this year said that they were uncomfortable with voting for or against repeal until the Pentagon completed its study of the policy. The study, released today, finds that an overwhelming majority of both soldiers and their spouses had absolutely no problem with letting gay and lesbian soldiers serve openly. The report found that “69 percent — believed they had already worked with a gay man or woman, and of those the vast majority — 92 percent — reported that the unit’s ability to work together was very good, good or ‘neither good nor poor.’” The authors of the report, Jeh C. Johnson, the Pentagon’s chief counsel, and Gen. Carter F. Ham, the commander of the United States Army in Europe, even wrote that “we are both convinced that our military can do this, even during this time of war.”
Now that the Pentagon has conclusively found that unit cohesion and effectiveness won’t be jeopardized by a repeal of Don’t Ask Don’t Tell, it is important to remember the Republican senators who said Congress should wait for the report before an up or down vote on repealing DADT.
Mark Kirk (R-IL):
I think we should wait for the Joint Chiefs of Staff to report. This was actually the recommendation of Secretary Gates and the President, but Speaker Pelosi wanted to move forward anyway. The problem here is that when you remove the policy, you got to have a new policy….I’m going to read every word of that study.
Scott Brown (R-MA):
I am keeping an open mind, but I do not support moving ahead until I am able to finish my review, the Pentagon completes its study, and we can be assured that a new policy can be implemented without jeopardizing the mission of our military.
Olympia Snowe (R-ME):
Moreover, as I have previously stated, given that the law implementing the “Don’t Ask, Don’t Tell” policy has been in place for nearly 17 years, I agree that it is overdue for a thorough review. The question is, whether we should be voting on this issue before we have the benefit of the comprehensive review that President Obama’s Secretary of Defense ordered in March, to secure the input of our men and women in uniform during this time of war – as the Joint Chiefs of Staff from all of the services have requested prior to any vote. We should all have the opportunity to review that report which is to be completed on December 1, as we reevaluate this policy and the implementation of any new changes.
John Ensign (R-NV):
“It is my firm belief that Americans, regardless of their sexual orientation, should be able to fight and risk their lives in defense of this great nation. As a nation currently engaged in combat in Afghanistan and Iraq, the focus of all decisions affecting military readiness, recruiting and retention, and unit cohesion should be to maximize the success of ongoing operations.”
Ensign spokesperson Jennifer Cooper reiterated this point: "Senator Ensign is waiting on the report from the Pentagon and the testimony of the military chiefs to see if any changes to this policy can or should be done in a way so as not to harm the readiness or war fighting capabilities of our troops."
Roger Wicker (R-MS):
Congress should refrain from conducting any legislative action on ‘Don’t Ask, Don’t Tell’ until the Defense Department has concluded its comprehensive review of the policy.
Richard Burr (R-NC):
Don't Ask Don't Tell has worked. Now personally I don't see a reason to reverse it. But that's a personal opinion. I think the country should have a debate. And what we should do is we should wait until the Department of Defense has gotten back the survey of those individuals who serve. That survey's back in December. This is not too far off…. Now I'm not scared to have the debate, I welcome the debate, but I'm also very confident that we should time this in a way that makes as little impact on those troops that are deployed as we possibly can.
John Thune (R-SD):
I believe it is in the best interest of our military to allow the DOD to complete its review of the repeal of Don't Ask, Don't Tell, before Congress injects politics into the process.
Last Thursday I attended a press conference convened on Capitol Hill in support of the Safe Schools Improvement Act and the Student Nondiscrimination Act. It was a diverse mix of speakers. Representatives Linda Sánchez and Jared Polis and Senators Robert Casey and Al Franken showed their support as our legislative champions. Clay Aiken (American Idol) and Louis Van Amstel (Dancing with the Stars) talked about using their star power to advance the cause. Dr. Eliza Byard, Executive Director of the Gay, Lesbian and Straight Education Network, and Dr. Cathy Minke, President of the National Association of School Psychologists, shared the work they do everyday as advocates and practitioners. Then there were the people for whom this issue hits closest to home: Sirdeaner Walker, mother of Carl Joseph Walker-Hoover; Tammy Aaberg, mother of Justin Aaberg; and Joey Kemmerling, a 16-year-old gay student from Bucks County, PA.
Something Dr. Byard said really stuck with me.
This is an issue of behavior, not belief.
Ensuring that schools are safe, as does the Safe Schools Improvement Act, and free of discrimination, as does the Student Nondiscrimination Act, isn’t about sexual orientation and gender identity, or how you might feel about LGBT issues being raised in schools. This is about stopping abhorrent behavior that prevents victimized students from accessing the quality education they need and deserve. Every student, LGBT or not, has the right to be educated in the same way.
Click here for more information, and be sure to take a look at this video posted by Senator Franken.
October 28 marked the one-year anniversary of President Obama’s signing of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. I recently wrote about how honoring Matthew is part of Making It Better. Not only must we make sure that the law bearing his name is effectively implemented, but we must also ensure school safety for LGBT youth – a fact not lost on the Department of Education.
The Department’s Office for Civil Rights has issued guidance to address bullying in schools, especially as it relates to federal education anti-discrimination laws. One of those laws, Title IX of the Education Amendments of 1972 (Title IX), prohibits discrimination on the basis of sex. While the language does not specify sexual orientation and gender identity, the Department has made clear that harassment on these grounds, under certain circumstances, violates Title IX.
Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also [. . .] be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. [. . .] Had the school recognized the conduct as a form of sex discrimination, it could have employed the full range of sanctions (including progressive discipline) and remedies designed to eliminate the hostile environment.
The Departments of Education and Justice are rightly focused on the plight of certain religious students and lesbian, gay, bisexual and transgender students who may not be receiving the full protections from bullying and harassment that are their right. While additional, specific protections are still needed, I commend this Administration for doing all in its power to protect vulnerable students.
Federal leadership on this important issue is critical to ensure that schools are safe places for all students, and that they help foster a culture in which bias and bullying are not tolerated. The guidelines will help community members work together to promote a civil and respectful environment for children, online as well as offline.
In order to fully protect LGBT young people, HRC continues to call on the administration to go beyond today’s interpretation of existing law and come out in support of two important pieces of legislation: the Student Non-Discrimination Act and the Safe Schools Improvement Act. The Student Non-Discrimination Act would explicitly prohibit discrimination by schools against public school students on the basis of sexual orientation and gender identity. The Safe Schools Improvement Act would require schools and districts receiving federal funds to adopt codes of conduct specifically prohibiting bullying and harassment, including on the basis of sexual orientation and gender identity.
It’s not often that a web site like Gawker makes me stop and think, but staff writer Brian Moylan did just that in a moving post about anti-gay bullying.
If we can't save these kids' lives, then all of our struggles for civil rights and marriage equality aren't worth anything.
Brian’s right. Repealing Don’t Ask, Don’t Tell. Passing the Employment Non-Discrimination Act. Health benefits and housing. Immigration rights. Relationship recognition. Marriage equality. If we don’t save the next generation, what we’re fighting for today won’t mean anything tomorrow.
These days we can’t seem to escape the stories of lives ruined, or even ended, by bullying based on actual or perceived sexual orientation. Tyler Clementi has dominated the news this week. We’ve also heard about Seth Walsh, Justin Aaberg, Billy Lucas, and Asher Brown. One death is too many. Five in such a short period of time is unconscionable. This must stop.
Columnist Dan Savage makes a simple plea to those who think they have nowhere to turn: It gets better.
Talk show host Ellen DeGeneres has a similar message: Things will get easier. People’s minds will change. And you should be alive to see it.
LGBT youth, just like all students, should feel safe and secure when they enter the schoolhouse doors. We can change the end of this story.
For more information, please click here. And be sure to check out the Gay, Lesbian and Straight Education Network.