Sexual Orientation and the Law Blog

Experts react to Pentagon shift in DADT policy

The Pentagon today announced it would make it more difficult to discharge lesbian and gay service members by issuing rules that only a general or admiral may initiate firings; adding a litmus test for the type of information that can start an investigation; and limiting third-party outings. A summary of changes is available from the Pentagon, as well as revised procedures for discharging enlisted personnel and officers. 

The following comments by scholarly experts are provided by the  Palm Center at the University of California Santa Barbara: 
 
Aaron Belkin, Director, and Associate Professor of Political Science, University of California, Santa Barbara:

The changes announced today are the first cracks in “don’t ask, don’t tell” since the policy was implemented seventeen years ago. While the operational impact of the Obama Rule may be limited, the political impact will be widely felt. These steps represent important forward movement. They send a signal to the military chain of command and the public that repeal is on the horizon, and that the military is prepared.

Nathaniel Frank, Senior Research Fellow, and author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America:

Today the Pentagon took an important step to end “don’t ask, don’t tell” by making it harder to fire lesbian and gay troops. For over two hundred years, the U.S. military was hostile to homosexuality, but today the Pentagon sent a message that lesbians and gays can serve our country without harming the force. By making it more difficult to fire gay service members, the Pentagon has signaled that service members who are widely known to be gay should continue to serve.
 
The full impact of the changes will depend on how they are actually enforced. We know that past attempts to dress up a bad military policy have been like putting lipstick on a pig and have failed. Perception is reality, and if the higher bars to discharge are not actually used to reduce firings and create a sense of privacy for gay troops, these changes will be a charade.
 
As Secretary Gates said today, the Pentagon could have raised the bar even higher, but chose not to. So while the administration is to be commended for taking this step, its work is far from over. As the focus shifts to Congress, the President has a major role to play to end the ban outright. If the President builds on this step by fighting successfully for legislative repeal, he will ensure his place in civil rights history not only for his own story, but as a fierce advocate of equal treatment.

Diane Mazur, Legal Co-Director, and Professor of Law, University of Florida Levin College of Law, former Captain, USAF:

When the military requires high-level approval for personnel actions, it is indicating that it believes enforcement of the policy is harming military effectiveness. In chipping away at the effects of the law, the Pentagon is conceding that knowledge of openly gay colleagues is not a problem, which is the whole basis of the policy. The changes announced today under the Obama Rule show repeal is inevitable.

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Giving plaintiffs a trial on their claims was unfair, Prop 8 defendants complain

The religious-conservative groups who intervened as defendants in the federal constitutional challenge to California's Proposition 8 had moved early in the case for summary judgment.  Recognizing the value of making a record for the inevitable appeal, the judge decided to hold a trial instead.  Now that the trial has occurred, the defendants are ratcheting up their criticism of the decision to hold it -- an interesting tactic, given that the judge has yet to rule on the merits.

Adam Liptak of the NYT reports:

Opponents of same-sex marriage have long said the issue does not belong in the courts. Lately they have gone a step further.

They say Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, made a serious mistake by calling for a trial in a challenge to California’s ban on same-sex marriage rather than deciding the case based on paper submissions.

“To think that somehow the rules of evidence can lead you to the right answer is just not right,” said Jordan W. Lorence, a lawyer with Alliance Defense Fund and a member of the trial team for the people and groups who intervened to defend the ban after state officials would not. “There should not have been a trial.”

Ted Olson, one of the lead attorneys for the gay couples challenging Prop 8, retorted that the defendants' complaints are sour grapes.  They’ve got to complain about something,” Olson told the NYT. “They think they’re going to lose.” 

Regardless of what they may think of a particular judge and his rulings, most litigants remain extremely circumspect and avoid anything approach public criticism while a case is pending.  It's just common sense.  This reality makes you wonder: were these criticisms just a matter of advocates being caught off guard, or do they portend a strategic legal and political line of attack in which the federal court -- and in particular Judge Walker, who is gay -- are attacked as biased, undemocratic, activist, etc.  And if the latter, is the audience for those attacks limited to the public (which tends to know almost nothing about summary judgment standards or the fine points of Constitutional law), or is the Alliance Defense Fund pitching at potential allies on the 9th Circuit or the Supreme Court? 

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Is VA attorney general's anti-gay directive to universities about law or personal bigotry?

Social conservative activist Ken Cuccinelli, recently elected Republican attorney general of Virginia, has told the state's public colleges and universities that the protections they offer against sexual orientation discrimination are inconsistent with state law and should be rescinded.  Now Cuccinelli is captured in a video interview with a local television reporter in which he agrees that homosexual "acts" are "a detriment to our culture." 

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College freshmen dramatically more in favor of marriage equality than population as a whole

The Chronicle Higher Education reports that "65 percent of the college freshmen surveyed last fall supported same-sex marriage, compared with 58 percent of Americans 18 to 29 years old and 39 percent of the population nationwide," according to new data released by the Higher Education Research Institute at the University of California at Los Angeles.  In fact, "College students who describe themselves as politically 'far right' arrive on campuses across the country supporting legal same-sex marriage significantly more than do conservative Republicans nationwide."

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Harvard Law conference on Reconstructing Masculinities

The Harvard Journal of Law and Gender is hosing a symposium on Reconstructing Masculinities on March 26.  Panel presentations will focus on "contemporary masculinities, their interactions with feminist and queer theory, and the role of masculinities in education and the workplace."  More information is available here.

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Petraeus: time has come to end don't ask, don't tell

When General David Petraeus was running the Iraq war, Republicans, including Sen. John McCain, routinely fell all over themselves to praise his wisdom and competence.  Now, Petraeus says "the time has come to consider a change to ‘don’t ask, don’t tell.’"   McCain, who has seriously tarnished his reputation for integrity and candor by flip-flopping on DADT, refused to allow Petraeus to read an eight-minute statement on the matter at a hearing today. 

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Assessing prospects at the Supreme Court for the Olson/Boies Prop 8 challenge

Veteran advocate Matt Coles, director of the ACLU's LGBT rights project, writes in the Huffington Post about what might happen if the federal challenge to California's Proposition 8 makes it all the way to the US Supreme Court.  Coles previously analyzed possible scenarios for the case in the lower courts.

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New bill in Congress would prohibit states from discriminating against gays in adoption

US Rep. Pete Stark (D-Calif.) has introduced the Every Child Deserves a Family Act (H.R. 4806). According to the ACLU, the legislation would aim to help reduce the number of children languishing in state-run facilities by restricting federal funding to states that discriminate in adoption and foster care placements based on the potential parents’ sexual orientation, gender identity or marital status.

According to the ACLU, it's estimated that at any given time, there are roughly 500,000 children in the child welfare system, with 125,000 waiting to be adopted. According to the Family Equality Council, there are approximately 1 million lesbian and gay parents raising about 2 million children across the United States.

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Analyzing possible outcomes in the federal challenge to Prop 8

Matt Coles, director of the ACLU's LGBT rights project, analyzes the possible outcomes in Perry v. Schwarzenegger, the federal challenge being litigated by Ted Olson and David Boies to California's Prop 8, which bars marriage equality for same-sex couples.  Coles sees four possible scenarios: the Big Win, the Smaller Win, the Smaller Loss and the Big Loss.

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Mexico City prepares for legalized same-sex marriage

Mexico City's law legalizing same-sex marriage took effect last week, and hundreds of gay and lesbian couples applied for marriage licenses at civil-registry offices, reports journalist Rex Wockner.  The first weddings are expected as early as tomorrow when the couples' documents have been processed.  A mass wedding is planned for this Sunday.

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School prefers to cancel prom for everyone rather than allow lesbian to bring her girlfriend

A rural Mississippi school district has called off a high school prom rather than allow a lesbian student to escort her girlfriend and wear a tuxedo.

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VA students organize online against attorney general's interference with university non-discrimination policies

Students in Virginia -- more than 660 at latest count -- are organizing online to protest a statement by the state's socially conservative Republican attorney general that anti-discrimination policies at the state's colleges and universities based on sexual orientation and gender identity are beyond the institutions' authority under state law.  The students' Facebook page is here.

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March Lesbigay Law Notes now available

The March issue of Professor Art Leonard's indispensable Lesbian/Gay Law Notes is now available.  The lead story features coverage and analysis of the opinion by Maryland's Attorney General that there was no impediment under Maryland law to the state recognizing same-sex marriages that were contracted lawfully in other jurisdictions, and predicting that the Maryland courts would likely conclude that such marriages should be recognized.

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Supreme Court to decide whether anti-gay funeral protests violate First Amendment

 

SCOTUSBlog reports that "[t]he Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade."

At the center of the case is Fred Phelps, the cartoonish pastor of Westboro Baptist Church in Topeka, Kan., who runs the web site www.godhatesfags.com (which includes a schedule of upcoming pickets accompanied by a variety of incoherent rants about each target).  

As SCOTUSBlog reports, Phelps preaches that "God hates America because it tolerates homosexuality, particularly in the military services."  Four years ago at a military funeral in Maryland, Phelps and a few followers demonstrated with signs saying “God Hates the USA,” “America is doomed,” “Semper fi fags,” and “Thank God for dead soldiers.”  The soldier's family won a $5 million judgment against Phelps for intentional infliction of emotional distress and other torts, but the Fourth Circuit US Court of Appeals reversed, holding that the picket was speech protected by the First Amendment. The Supreme Court will now review that holding.

SCOTUSBlog has a fuller report here.

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VA rollback of protection for universities, state workers shows that as the culture changes, GOP clings to anti-gay policies

Several weeks ago, an executive order by Virginia Gov. Robert F. McDonnell reversed protections that his predecessor, Democrat Tim Kaine, had provided to state employees against discrimination based on sexual orientation. As a follow-on, the state's socially conservative attorney general, Ken Cuccinelli, has now told the state's public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation and gender identity, arguing in a letter sent to each school that their boards of visitors had no legal authority to adopt such statements. Cuccinelli claims that only the state's legislature can extend legal protections to gay state employees, students and others. 

For the sake of their academic reputations and ability to attract the best faculty and students, one hopes the schools will ignore or challenge Cuccinelli's advice.  According to the Human Rights Campaign, 109 of the US News top 120 colleges and universities maintain non-discrimination policies based on sexual orientation, and 57 cover gender identity.

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Bill Moyers on Prop 8 and an interview with Olson and Boies

Veteran PBS journalist devoted his Bill Moyers Journal program Feb 26 to the federal court challenge to Proposition 8, including an interview with lawyers Ted Olson and David Boies.  Video, transcript, and podcast are available on the show's web site.

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Marriage equality is now the law in the nation's capital

On Wednesday, Washington, DC, joined Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont as the jurisdictions licensing marriages for same-sex couples. Congress could have overturned the will of the city's government, but its 30-day period for doing so expired yesterday.  By late Wednesday afternoon, more than 140 couples had filed to be married, the NYT reported.

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Lieberman steps up for lead role on repeal of DADT

The campaign to repeal Don't Ask, Don't Tell gained momentum today with the announcement that CT Sen. Joe Lieberman will introduce legislation to end the ban on gays serving openly in the military.  Before today's announcement, no senator had emerged to take a lead role in repealing DADT.

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DC marriage opponents fail in request for stay from Supreme Court

Acting as Circuit Justice for the DC Circuit, Chief Justice Roberts refused Tuesday to grant a stay of Washington, DC's Religious Freedom and Civil Marriage Equality Amendment Act, which allows same-sex marriage.  The stay had been sought by conservative Christian and African-American opponents of marriage equality led by pastor Harry Jackson (whose church is in Maryland, not DC).  Our colleague Ruthann Robson has coverage here.  The Washington Post story is here.  The Roberts in-chambers opinion is here. 

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Obama's flip-flop on marriage equality: he was for it before he was against it

As an obscure Illinois state senate candidate in 1996, Barack Obama answered a questionnaire from a gay-oriented newspaper this way: "I favor legalizing same-sex marriage, and would fight efforts to prohibit such marriages."

The same Obama now opposes marriage equality for same-sex couples, citing his personal religious convictions, though he favors the separate-but-equal status of civil unions.  In 2008, running for president, he told pop Christianity pastor Rick Warren, "I believe that marriage is the union between a man and a woman. Now, for me as a Christian ... it is also a sacred union. God's in the mix."  (Obama's denomination, the United Church of Christ, actually supports full marriage equality.)

It's unclear whether very many people knew about this flip-flop before it was documented recently by the San Francisco Chronicle's Bob Egelko.

As Geoff Kors, the leader of Equality California, told Egelko, all this is more evidence that Obama is a fairly conventional politician:

"When he was running for office in Chicago and wanted strong support from the LGBT (lesbian, gay, bisexual and transgender) community, he made it clear he supported full equality," Kors said. "Since he has continued to seek higher office, he has changed his position for the worse.

"It's especially appalling that he is citing his religious beliefs as grounds for his public government position on the civil marriage issue because he knows better," Kors said.

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