Saturday, July 31, 2010
Tuesday, July 27, 2010
Sonoma County CA Pays for Shameful Treatment of Gay Couple
From Change.org:
A few years ago the County of Sonoma in California showed its despicable and ignorant hand when it physically separated and isolated Clay Greene from his injured partner Harold Scull, seized the men's possessions, sold those items at auction, forced them into separate nursing facilities and denied them their due legal rights and protection. As this story went viral in April 2010, the general response both here at change.org and around the country was palpable and appropriate outrage. A lawsuit against the County of Sonoma, along with Agua Caliente Villa, the nursing home where Greene was forced to live, commenced immediately, alleging about 50 counts of various, heinous crimes.
And now, months later, Sonoma County has tucked its tail between its legs and skulked away from what was surely going to be a terrible trial, and settled out of court. In retribution for all their sins, the County will pay $600,000 to Harold and Clay's estate (with almost half of that going to attorney's fees ... why do I not practice law again?). Agua Caliente will pay an additional $53,000.
So that's all well and good, I guess. Money can't ever erase the three tortuous months the two men spent apart, stripped of their home, their dignity, and their partnership before Harold died alone in a nursing home. It can't replace the possessions, gathered over a 20 year relationship, that the county wrongfully seized and then sold at auction. It can't undo the emotional hurt. At this point, all Sonoma County has to give is money, so it'll have to do.
But Sonoma County has learned the error of its ways — either to simply cover its ass in the future or to be a kinder, gentler county, who knows? — and is also implementing new procedures for its workers to avoid this kind of intolerant behavior in the future. This is, perhaps, the best news. They can't really fix the enormous injury they inflicted upon Clay Greene, but they can damn sure never inflict it on anyone else.
Wouldn't it have been nice if Sonoma County had an inclusive policy already in place? Sure. It would have been nice if Jackson Memorial had a gay friendly visitation code long before Lisa Pond was admitted. It would have been great if the Itawamba School District had a strict no bullying policy way before Candace McMillan was even a student. It would have been even better if the Defense of Marriage Act was a thing of the past. But we don't live in that world. Yet.
To Clay Greene I say this: I am so sorry you had to go through what you and Harold had to go through. I can't imagine the level of pain and sorrow you both felt. Perhaps, because of you, and those like you who were boldly empowered to speak out at a time when the system beat you down, I won't ever know it.
A few years ago the County of Sonoma in California showed its despicable and ignorant hand when it physically separated and isolated Clay Greene from his injured partner Harold Scull, seized the men's possessions, sold those items at auction, forced them into separate nursing facilities and denied them their due legal rights and protection. As this story went viral in April 2010, the general response both here at change.org and around the country was palpable and appropriate outrage. A lawsuit against the County of Sonoma, along with Agua Caliente Villa, the nursing home where Greene was forced to live, commenced immediately, alleging about 50 counts of various, heinous crimes.
And now, months later, Sonoma County has tucked its tail between its legs and skulked away from what was surely going to be a terrible trial, and settled out of court. In retribution for all their sins, the County will pay $600,000 to Harold and Clay's estate (with almost half of that going to attorney's fees ... why do I not practice law again?). Agua Caliente will pay an additional $53,000.
So that's all well and good, I guess. Money can't ever erase the three tortuous months the two men spent apart, stripped of their home, their dignity, and their partnership before Harold died alone in a nursing home. It can't replace the possessions, gathered over a 20 year relationship, that the county wrongfully seized and then sold at auction. It can't undo the emotional hurt. At this point, all Sonoma County has to give is money, so it'll have to do.
But Sonoma County has learned the error of its ways — either to simply cover its ass in the future or to be a kinder, gentler county, who knows? — and is also implementing new procedures for its workers to avoid this kind of intolerant behavior in the future. This is, perhaps, the best news. They can't really fix the enormous injury they inflicted upon Clay Greene, but they can damn sure never inflict it on anyone else.
Wouldn't it have been nice if Sonoma County had an inclusive policy already in place? Sure. It would have been nice if Jackson Memorial had a gay friendly visitation code long before Lisa Pond was admitted. It would have been great if the Itawamba School District had a strict no bullying policy way before Candace McMillan was even a student. It would have been even better if the Defense of Marriage Act was a thing of the past. But we don't live in that world. Yet.
To Clay Greene I say this: I am so sorry you had to go through what you and Harold had to go through. I can't imagine the level of pain and sorrow you both felt. Perhaps, because of you, and those like you who were boldly empowered to speak out at a time when the system beat you down, I won't ever know it.
More on Target's Support of Anti-Gay Candidate
From Metroweekly.com:
''Marriage
I believe marriage is the union between one man and one woman. As a legislator, I have consistently supported the constitutional marriage amendment that protects traditional marriage.''
From the election website of Tom Emmer, a Republican candidate for Governor of Minnesota. It is reported by AP that Target Corp., the parent company of Target stores based in Minneapolis, has donated $150,000 in cash and brand consulting to "a Republican-friendly political fund.'' Adding that the recipients of the donation are running ads for Tom Emmer. AP calls Emmer "a fiery conservative who opposes gay marriage...,'' then contrasts that donation with a donation from the company to the annual Twin Cities Gay Pride Festival. (Tom Emmer) (AP)
''[Target Corporation] has given $150,000 to a political action committee (PAC), Minnesota Forward, which supports Tom Emmer, Minnesota Republican candidate for governor. Emmer's campaign has previously given money to a ministry that believes Muslim countries that execute gay men and lesbians are more moral than American Christians. The news is even more upsetting, however, when one considers that Target received a perfect score of 100 on the Human Rights Campaign's most recent Corporate Equality Index (CEI).''
From a post at Change.org by Dana Rudolph opposing the donation of funds to a PAC that runs ads for conservative Minnesota politician Tom Emmer. (Change.org)
"Why they would want to get involved and say 'we're for one person' or 'we're for one party' is really beyond me.... There are a lot of people who take politics very seriously and they take their views on issues very seriously, and they do not want to see their money going directly to fund somebody who is directly antagonistic to their belief system."
Minnesota State Representative Ryan Winkler asking publicly, on Minnesota Public Radio, why Target Corp. would donate $150,000 to support a socially conservative gubenatorial candidate Tom Emmer when his "views on abortion, gay marriage and the minimum wage could upset Target shoppers.'' (Minnesota.PublicRadio.org)
''To continue to grow and create jobs and opportunity in our home state, we believe it is imperative to be engaged in public policy and the political process. That is why we are members of organizations like the Minnesota Business Partnership, the Chamber of Commerce and many others. And that is why we decided to contribute to MN Forward.
''MN Forward's objective is to elect candidates from both parties who will make job creation and economic growth a top priority. We operate best when working collaboratively with legislators on both sides of the aisle. In fact, if you look at our Federal PAC contributions year to date, you will see that they are very balanced between Republicans and Democrats. For more information please visit www.target.com/company, and view the Civic Activity page.''
Portion of an e-mail said to be a response from the Executive Offices of Target, as posted by BearBunMN on the website MN Progressive Project. The usually gay-friendly company has donated to a political fund which is reported to be backing one particularly gay-unfriendly candidate for Governor of Minnesota, Tom Emmer. (MNProgressiveProject)
''Marriage
I believe marriage is the union between one man and one woman. As a legislator, I have consistently supported the constitutional marriage amendment that protects traditional marriage.''
From the election website of Tom Emmer, a Republican candidate for Governor of Minnesota. It is reported by AP that Target Corp., the parent company of Target stores based in Minneapolis, has donated $150,000 in cash and brand consulting to "a Republican-friendly political fund.'' Adding that the recipients of the donation are running ads for Tom Emmer. AP calls Emmer "a fiery conservative who opposes gay marriage...,'' then contrasts that donation with a donation from the company to the annual Twin Cities Gay Pride Festival. (Tom Emmer) (AP)
''[Target Corporation] has given $150,000 to a political action committee (PAC), Minnesota Forward, which supports Tom Emmer, Minnesota Republican candidate for governor. Emmer's campaign has previously given money to a ministry that believes Muslim countries that execute gay men and lesbians are more moral than American Christians. The news is even more upsetting, however, when one considers that Target received a perfect score of 100 on the Human Rights Campaign's most recent Corporate Equality Index (CEI).''
From a post at Change.org by Dana Rudolph opposing the donation of funds to a PAC that runs ads for conservative Minnesota politician Tom Emmer. (Change.org)
"Why they would want to get involved and say 'we're for one person' or 'we're for one party' is really beyond me.... There are a lot of people who take politics very seriously and they take their views on issues very seriously, and they do not want to see their money going directly to fund somebody who is directly antagonistic to their belief system."
Minnesota State Representative Ryan Winkler asking publicly, on Minnesota Public Radio, why Target Corp. would donate $150,000 to support a socially conservative gubenatorial candidate Tom Emmer when his "views on abortion, gay marriage and the minimum wage could upset Target shoppers.'' (Minnesota.PublicRadio.org)
''To continue to grow and create jobs and opportunity in our home state, we believe it is imperative to be engaged in public policy and the political process. That is why we are members of organizations like the Minnesota Business Partnership, the Chamber of Commerce and many others. And that is why we decided to contribute to MN Forward.
''MN Forward's objective is to elect candidates from both parties who will make job creation and economic growth a top priority. We operate best when working collaboratively with legislators on both sides of the aisle. In fact, if you look at our Federal PAC contributions year to date, you will see that they are very balanced between Republicans and Democrats. For more information please visit www.target.com/company, and view the Civic Activity page.''
Portion of an e-mail said to be a response from the Executive Offices of Target, as posted by BearBunMN on the website MN Progressive Project. The usually gay-friendly company has donated to a political fund which is reported to be backing one particularly gay-unfriendly candidate for Governor of Minnesota, Tom Emmer. (MNProgressiveProject)
Monday, July 12, 2010
Why is the Military Polling Troops About Gays?
From Time.com:
When Harry Truman wanted to integrate blacks into the U.S. military in 1948, he simply ordered it done. When the Navy wanted women on ships beginning in 1978, it commanded its admirals to do so. When the Clinton Pentagon decided women should become fighter pilots, it issued orders telling the military to make it happen. For generations, the military mind-set has been, If we want you to have an opinion, we'll issue you one. So why is the Pentagon asking troops how they'll feel if forced to serve alongside openly gay comrades?
"This is a very dangerous precedent," says Lawrence Korb, who ran the Pentagon's personnel office during the Reagan Administration. "It gives the troops the feeling that they have a veto over what the top people want." Not everyone agrees. "What matters is the morale of the force in the field," says Ralph Peters, a retired Army officer and military scholar. "The survey is an honest attempt to suss out what the effects on morale might be."
(See a brief history of gays in the military.)
But even a top officer acknowledges some unease. "We've never done this," Admiral Gary Roughead, the chief of naval operations, said in February after Pentagon leaders endorsed ending "Don't ask, don't tell" and said they would survey the troops about it. "We've never assessed the force because it is not our practice to go within our military and poll our force to determine if they like the laws of the land or not," he told an activist from the University of California's Palm Center, which monitors the issue. "I mean, that gets you into [a] very difficult regime."
(See the case of a murdered sailor.)
Aaron Belkin, director of the Palm Center, says the poll is simply a political tool designed to ease a decision that would be better made quickly. Instead, it's part of a prolonged process that polarizes those involved and hurts both national security and gays. "If we were asking questions about any other identity group — Would your wife mind living on post next to a Chinese family?, Would you take orders from a Baptist officer?, Would you mind serving alongside an African American? — these kinds of questions make those groups second-class citizens," he says.
But the polling and a Pentagon study now under way — after President Obama, Defense Secretary Robert Gates, Chairman of the Joint Chiefs of Staff Admiral Mike Mullen and the House all have declared the ban should end (the Senate is expected to do so soon) — does serve a purpose. "We've had to do these political somersaults," Belkin says, "involving a basically fake study process, in order to give the Pentagon a sense that they have some buy-in." Gates said Thursday that it's "very important for us to understand from our men and women in uniform the challenges that they see" accompanying such a change, and added that the survey is "being done in a very professional way."
(Read TIME's 1991 article "Marching Out of the Closet.")
But the confidential survey, sent out via e-mail last week to 400,000 active and reserve troops, is already controversial. Gay-advocacy groups obtained copies of the poll Friday and it quickly flew around the Internet. The survey "stokes the fires of homophobia by its very design, and will only make the Pentagon's responsibility to subdue homophobia as part of this inevitable policy change even harder," said Alexander Nicholson of Servicemembers United, a former Army interrogator who was discharged under the existing "Don't ask, don't tell" legislation. He complained that the survey uses "bias-inducing" words "such as the clinical term homosexual," and focused too much on the negative implications of repeal. Pentagon spokesman Geoff Morrell called such criticism "nonsense."
(Comment on this story.)
The Servicemembers Legal Defense Network, perhaps the leading gay-rights group dealing with "Don't ask, don't tell," took a tough line against the survey. "No survey of the troops should be done," director Aubrey Sarvis said Friday. "Surveying the troops is unprecedented — it did not happen in 1948 when President Truman ended segregation and it did not happen in 1976 when the service academies opened to women. Even when the military placed women on ships at sea, the Pentagon did not turn to a survey on how to bring about that cultural change."
Troops have until Aug. 15 to complete the survey, which asks some 100 questions about how troops would feel serving alongside openly gay comrades or commanders. ("If 'Don't ask, don't tell' is repealed and you are working with a service member in your immediate unit who has said he or she is gay or lesbian, how, if at all, would it affect your immediate unit's effectiveness at completing its mission?" asks a typical question. The six multiple-choice answers range from "Very positively" to "Very negatively" and also include "No effect.") A second confidential survey, assessing how 150,000 family members feel about the prospective repeal, is slated for next month.
Congress passed "Don't ask, don't tell" in 1993 to thwart President Clinton's bid to lift a ban on gays serving openly. Until then, the White House had unilaterally barred open gays from serving in uniform. Under the 1993 law, recruits were no longer asked if they were gay ("don't ask"). They could serve so long as they kept their mouths shut about their private lives ("don't tell"). It was a crude compromise, which still allowed the military to kick out nearly 14,000 troops, including more than 400 last year while the nation was waging two wars.
But the public mood has shifted since 1993, when only 44% of the public supported openly gay men and women in uniform. It's now supported by 75%, according to a Washington Post poll. But never mind newspaper polls. Korb, the former Pentagon personnel chief now at the Center for American Progress think tank, is more concerned over what might happen if military surveys like this catch on. "Are they going to poll the troops on whether they want happy hours or discount cigarettes?" he asks. "Where does it stop — should we get out of Afghanistan?"
Read more: http://www.time.com/time/nation/article/0,8599,2003075,00.html?xid=rss-topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+time%2Ftopstories+%28TIME%3A+Top+Stories%29#ixzz0tV8OA5RU
When Harry Truman wanted to integrate blacks into the U.S. military in 1948, he simply ordered it done. When the Navy wanted women on ships beginning in 1978, it commanded its admirals to do so. When the Clinton Pentagon decided women should become fighter pilots, it issued orders telling the military to make it happen. For generations, the military mind-set has been, If we want you to have an opinion, we'll issue you one. So why is the Pentagon asking troops how they'll feel if forced to serve alongside openly gay comrades?
"This is a very dangerous precedent," says Lawrence Korb, who ran the Pentagon's personnel office during the Reagan Administration. "It gives the troops the feeling that they have a veto over what the top people want." Not everyone agrees. "What matters is the morale of the force in the field," says Ralph Peters, a retired Army officer and military scholar. "The survey is an honest attempt to suss out what the effects on morale might be."
(See a brief history of gays in the military.)
But even a top officer acknowledges some unease. "We've never done this," Admiral Gary Roughead, the chief of naval operations, said in February after Pentagon leaders endorsed ending "Don't ask, don't tell" and said they would survey the troops about it. "We've never assessed the force because it is not our practice to go within our military and poll our force to determine if they like the laws of the land or not," he told an activist from the University of California's Palm Center, which monitors the issue. "I mean, that gets you into [a] very difficult regime."
(See the case of a murdered sailor.)
Aaron Belkin, director of the Palm Center, says the poll is simply a political tool designed to ease a decision that would be better made quickly. Instead, it's part of a prolonged process that polarizes those involved and hurts both national security and gays. "If we were asking questions about any other identity group — Would your wife mind living on post next to a Chinese family?, Would you take orders from a Baptist officer?, Would you mind serving alongside an African American? — these kinds of questions make those groups second-class citizens," he says.
But the polling and a Pentagon study now under way — after President Obama, Defense Secretary Robert Gates, Chairman of the Joint Chiefs of Staff Admiral Mike Mullen and the House all have declared the ban should end (the Senate is expected to do so soon) — does serve a purpose. "We've had to do these political somersaults," Belkin says, "involving a basically fake study process, in order to give the Pentagon a sense that they have some buy-in." Gates said Thursday that it's "very important for us to understand from our men and women in uniform the challenges that they see" accompanying such a change, and added that the survey is "being done in a very professional way."
(Read TIME's 1991 article "Marching Out of the Closet.")
But the confidential survey, sent out via e-mail last week to 400,000 active and reserve troops, is already controversial. Gay-advocacy groups obtained copies of the poll Friday and it quickly flew around the Internet. The survey "stokes the fires of homophobia by its very design, and will only make the Pentagon's responsibility to subdue homophobia as part of this inevitable policy change even harder," said Alexander Nicholson of Servicemembers United, a former Army interrogator who was discharged under the existing "Don't ask, don't tell" legislation. He complained that the survey uses "bias-inducing" words "such as the clinical term homosexual," and focused too much on the negative implications of repeal. Pentagon spokesman Geoff Morrell called such criticism "nonsense."
(Comment on this story.)
The Servicemembers Legal Defense Network, perhaps the leading gay-rights group dealing with "Don't ask, don't tell," took a tough line against the survey. "No survey of the troops should be done," director Aubrey Sarvis said Friday. "Surveying the troops is unprecedented — it did not happen in 1948 when President Truman ended segregation and it did not happen in 1976 when the service academies opened to women. Even when the military placed women on ships at sea, the Pentagon did not turn to a survey on how to bring about that cultural change."
Troops have until Aug. 15 to complete the survey, which asks some 100 questions about how troops would feel serving alongside openly gay comrades or commanders. ("If 'Don't ask, don't tell' is repealed and you are working with a service member in your immediate unit who has said he or she is gay or lesbian, how, if at all, would it affect your immediate unit's effectiveness at completing its mission?" asks a typical question. The six multiple-choice answers range from "Very positively" to "Very negatively" and also include "No effect.") A second confidential survey, assessing how 150,000 family members feel about the prospective repeal, is slated for next month.
Congress passed "Don't ask, don't tell" in 1993 to thwart President Clinton's bid to lift a ban on gays serving openly. Until then, the White House had unilaterally barred open gays from serving in uniform. Under the 1993 law, recruits were no longer asked if they were gay ("don't ask"). They could serve so long as they kept their mouths shut about their private lives ("don't tell"). It was a crude compromise, which still allowed the military to kick out nearly 14,000 troops, including more than 400 last year while the nation was waging two wars.
But the public mood has shifted since 1993, when only 44% of the public supported openly gay men and women in uniform. It's now supported by 75%, according to a Washington Post poll. But never mind newspaper polls. Korb, the former Pentagon personnel chief now at the Center for American Progress think tank, is more concerned over what might happen if military surveys like this catch on. "Are they going to poll the troops on whether they want happy hours or discount cigarettes?" he asks. "Where does it stop — should we get out of Afghanistan?"
Read more: http://www.time.com/time/nation/article/0,8599,2003075,00.html?xid=rss-topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+time%2Ftopstories+%28TIME%3A+Top+Stories%29#ixzz0tV8OA5RU
Sunday, July 11, 2010
Obama Can't Shake Gay Rights Fight
From Politico.com:
By: Josh Gerstein
July 10, 2010 07:03 AM EDT
When President Barack Obama agreed to back legislation in May that could eventually repeal the military’s "don’t ask, don’t tell" policy, the resolution seemed to offer twin benefits for the White House:
Quell the anger of gay activists who accused Obama of foot-dragging on the issue, and allow the question of gays in the military to cool for a while, perhaps until after the November election.
That didn’t last long.
The issue leapt back into the news this week after the Pentagon sent a survey to 400,000 troops to assess their attitudes on whether openly gay soldiers should be allowed to serve — with questions being criticized by gay rights advocates as inaccurate, inflammatory and biased.
Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California — and Obama’s Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.
Some gay rights activists who were cheered by Obama’s decision in May now say they’re frustrated by what feels like a two steps forward, one step back approach to the issue — especially in light of Obama’s delay in seeking to repeal of the policy in the first place.
“This has got to be a nightmare for the White House political office, especially as Organizing for America ramps up efforts to rebuild a coalition for the midterms which includes gays,” said Richard Socarides, a senior adviser to President Bill Clinton on gay rights issues. “I want the Democrats to keep both houses of Congress more than most. It’s very important that we do that if gay rights are important to you. So I can’t understand why the president’s senior advisers permit the Justice Department to defend this case. … It’s incomprehensible.”
Spokespeople for the Justice Department and the White House declined to comment for this story. However, officials have said that Justice is obligated to defend any law Congress passes as long as there is a plausible legal basis to do so, even if the current administration disagrees with the statute.
Some lawyers in the gay rights movement scoff at that. They note that from time to time, Justice has refused to stand behind laws under challenge as unconstitutional. For instance, in 2005, the Justice Department declined to defend a law barring the D.C. Metro transit system from accepting ads that promote legalizing marijuana.
For the attorneys from the Justice Department’s Civil Division assigned to handle the Log Cabin case, it’s essentially a Catch-22. If they get tough or confrontational with the ex-service-members or experts called to testify, the government lawyers risk being accused of insensitivity.
If they hold back, Republicans and social conservatives could accuse the administration of taking a dive in a case it never really wanted to win.
“This is a pincer” for the government’s lawyers, said Stephen Gillers, a law professor at New York University. However, he didn’t have much sympathy. “It comes with the territory,” he said.
Even ahead of the Log Cabin case, conservative Republicans have been attacking Obama on gay rights as well, insisting that the Justice Department isn’t really trying very hard to defend the "don’t ask, don’t tell" policy.
During the confirmation hearings for Supreme Court nominee Elena Kagan last week, Sen. Chuck Grassley (R-Iowa) and Sen. Jeff Sessions (R-Ala.) suggested that the Justice Department wasn’t going all-out to fight lawsuits against the gays-in-the-military policy, and over a law denying federal recognition to same-sex marriages, the Defense of Marriage Act.
Kagan denied the charge. “I have acted in the solicitor general's office consistently with the responsibility, which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy,” Kagan said.
A federal judge’s rulings Thursday holding part of the Defense of Marriage Act unconstitutional triggered a round of complaints from conservatives that the Obama administration was making a politically correct and less-than-forceful defense of that law.
“The Justice Department’s half-hearted defense in this case — exemplified by DOJ’s own attorney asserting that President Obama opposes DOMA — is unacceptable. The president’s personal views have nothing to do with the defense of a law passed by Congress,” said Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee.
Gillers said, though, that government attorneys were not obliged to rip apart the opposition the way a private litigator might. “Because you’re a government lawyer, you’re not given the same deference to be a junkyard dog for that client,” he said. “A government lawyer has a broader mandate.”
Written briefs in gay-rights-related cases have already landed the Justice Department in hot water with the Obama White House after gay activists complained the filings compared same-sex marriage to forms of incest and marriages involving minors. Sources say some filings in such cases are now coordinated with White House lawyers.
But the give-and-take of live courtroom testimony is even more treacherous and can’t be vetted so easily from Washington. The lead lawyer for the Log Cabin group, Dan Woods of White & Case in Los Angeles, said he expects the trial to stretch for two weeks and involve testimony by seven expert witnesses and as many as six former service members. Justice Department lawyers have said they plan to call no witnesses at the bench trial to be held before Judge Virginia Phillips, without a jury, Woods said.
With the new Pentagon survey under fire for its questions about open-bay showers and even its use of the term “homosexual,” it is almost certain that Justice Department lawyers handling the Log Cabin case will be accused of asking insensitive or homophobic questions as they cross-examine witnesses.
On the other side of the political spectrum, social conservatives say they’ll be watching closely to see whether DOJ is going easy. “We hope the administration’s politically motivated position against 'don’t ask, don’t tell' will not be a factor in defending the regulations,” said Daniel Blomberg of the Alliance Defense Fund.
The political minefield the trial presents may be one reason the Justice Department has tried mightily to head it off.
Last month, government lawyers asked Phillips to put the case on hold indefinitely because of the steps Congress took in May toward a repeal of the "don’t ask" statute passed in 1993. On May 27, the House voted, 234-194, in favor of a measure that would repeal "don’t ask" next year if top military leaders certify the repeal can be carried out without impacting force readiness and unit cohesion. On the same day, the Senate Armed Services Committee voted, 16-12, for the same language.
However, the judge noted that the bills involved have not cleared Congress and that the repeal depends on several actions by the military and Obama that may or may not happen. “Given the many contingencies involved — including the threshold contingency of congressional approval — and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative,” Phillips wrote Tuesday as she ordered the trial to go forward.
Government lawyers also have asked Phillips to deny a trial as unnecessary, to exclude all of the expert witnesses and most of the other witnesses. Phillips, a Clinton appointee, denied all the motions.
Woods pointed to one specific episode that he said highlighted the contradictions in the government’s case. He said the plaintiffs asked the government to admit that Obama said last year that "don’t ask" weakens national security and that the statement is true. The government admitted Obama made the comment but declined to say whether it was true. After a judge required the government to answer, it denied Obama’s assertion.
“They keep saying they have no choice but to defend the law because it is the law and that’s their job at the Justice Department, but the hypocrisy of this emerges all the time,” Woods said. “They are in a very awkward position.”
There are a few breaks for the administration in the trial set to start this week. The location in Riverside, Calif., far from Washington’s political press, should diminish coverage. And the ban on cameras in federal trial courts means TV coverage will have to rely on courtroom sketches.
But the gay Republicans who filed the case back in 2004 are doing their best to keep the legal and public pressure on the Obama administration. The Log Cabin group said Friday that Woods plans a daily press availability after the trial session, that principals in the case will be readily available to the media, and that the group plans a daily bulletin on trial developments.
By: Josh Gerstein
July 10, 2010 07:03 AM EDT
When President Barack Obama agreed to back legislation in May that could eventually repeal the military’s "don’t ask, don’t tell" policy, the resolution seemed to offer twin benefits for the White House:
Quell the anger of gay activists who accused Obama of foot-dragging on the issue, and allow the question of gays in the military to cool for a while, perhaps until after the November election.
That didn’t last long.
The issue leapt back into the news this week after the Pentagon sent a survey to 400,000 troops to assess their attitudes on whether openly gay soldiers should be allowed to serve — with questions being criticized by gay rights advocates as inaccurate, inflammatory and biased.
Next week, a lawsuit brought by the Log Cabin Republicans is going to trial in California — and Obama’s Justice Department is in the uncomfortable position of trying to prevent the "don't ask, don't tell" policy from being overturned as discharged veterans testify about its dramatic impact on their careers.
Some gay rights activists who were cheered by Obama’s decision in May now say they’re frustrated by what feels like a two steps forward, one step back approach to the issue — especially in light of Obama’s delay in seeking to repeal of the policy in the first place.
“This has got to be a nightmare for the White House political office, especially as Organizing for America ramps up efforts to rebuild a coalition for the midterms which includes gays,” said Richard Socarides, a senior adviser to President Bill Clinton on gay rights issues. “I want the Democrats to keep both houses of Congress more than most. It’s very important that we do that if gay rights are important to you. So I can’t understand why the president’s senior advisers permit the Justice Department to defend this case. … It’s incomprehensible.”
Spokespeople for the Justice Department and the White House declined to comment for this story. However, officials have said that Justice is obligated to defend any law Congress passes as long as there is a plausible legal basis to do so, even if the current administration disagrees with the statute.
Some lawyers in the gay rights movement scoff at that. They note that from time to time, Justice has refused to stand behind laws under challenge as unconstitutional. For instance, in 2005, the Justice Department declined to defend a law barring the D.C. Metro transit system from accepting ads that promote legalizing marijuana.
For the attorneys from the Justice Department’s Civil Division assigned to handle the Log Cabin case, it’s essentially a Catch-22. If they get tough or confrontational with the ex-service-members or experts called to testify, the government lawyers risk being accused of insensitivity.
If they hold back, Republicans and social conservatives could accuse the administration of taking a dive in a case it never really wanted to win.
“This is a pincer” for the government’s lawyers, said Stephen Gillers, a law professor at New York University. However, he didn’t have much sympathy. “It comes with the territory,” he said.
Even ahead of the Log Cabin case, conservative Republicans have been attacking Obama on gay rights as well, insisting that the Justice Department isn’t really trying very hard to defend the "don’t ask, don’t tell" policy.
During the confirmation hearings for Supreme Court nominee Elena Kagan last week, Sen. Chuck Grassley (R-Iowa) and Sen. Jeff Sessions (R-Ala.) suggested that the Justice Department wasn’t going all-out to fight lawsuits against the gays-in-the-military policy, and over a law denying federal recognition to same-sex marriages, the Defense of Marriage Act.
Kagan denied the charge. “I have acted in the solicitor general's office consistently with the responsibility, which I agree with you very much that I have, to vigorously defend all statutes, including the statute that embodies the 'don't ask, don't tell' policy,” Kagan said.
A federal judge’s rulings Thursday holding part of the Defense of Marriage Act unconstitutional triggered a round of complaints from conservatives that the Obama administration was making a politically correct and less-than-forceful defense of that law.
“The Justice Department’s half-hearted defense in this case — exemplified by DOJ’s own attorney asserting that President Obama opposes DOMA — is unacceptable. The president’s personal views have nothing to do with the defense of a law passed by Congress,” said Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee.
Gillers said, though, that government attorneys were not obliged to rip apart the opposition the way a private litigator might. “Because you’re a government lawyer, you’re not given the same deference to be a junkyard dog for that client,” he said. “A government lawyer has a broader mandate.”
Written briefs in gay-rights-related cases have already landed the Justice Department in hot water with the Obama White House after gay activists complained the filings compared same-sex marriage to forms of incest and marriages involving minors. Sources say some filings in such cases are now coordinated with White House lawyers.
But the give-and-take of live courtroom testimony is even more treacherous and can’t be vetted so easily from Washington. The lead lawyer for the Log Cabin group, Dan Woods of White & Case in Los Angeles, said he expects the trial to stretch for two weeks and involve testimony by seven expert witnesses and as many as six former service members. Justice Department lawyers have said they plan to call no witnesses at the bench trial to be held before Judge Virginia Phillips, without a jury, Woods said.
With the new Pentagon survey under fire for its questions about open-bay showers and even its use of the term “homosexual,” it is almost certain that Justice Department lawyers handling the Log Cabin case will be accused of asking insensitive or homophobic questions as they cross-examine witnesses.
On the other side of the political spectrum, social conservatives say they’ll be watching closely to see whether DOJ is going easy. “We hope the administration’s politically motivated position against 'don’t ask, don’t tell' will not be a factor in defending the regulations,” said Daniel Blomberg of the Alliance Defense Fund.
The political minefield the trial presents may be one reason the Justice Department has tried mightily to head it off.
Last month, government lawyers asked Phillips to put the case on hold indefinitely because of the steps Congress took in May toward a repeal of the "don’t ask" statute passed in 1993. On May 27, the House voted, 234-194, in favor of a measure that would repeal "don’t ask" next year if top military leaders certify the repeal can be carried out without impacting force readiness and unit cohesion. On the same day, the Senate Armed Services Committee voted, 16-12, for the same language.
However, the judge noted that the bills involved have not cleared Congress and that the repeal depends on several actions by the military and Obama that may or may not happen. “Given the many contingencies involved — including the threshold contingency of congressional approval — and the lack of clear timelines, any ultimate repeal that may result from this legislation is at this point remote, if not wholly speculative,” Phillips wrote Tuesday as she ordered the trial to go forward.
Government lawyers also have asked Phillips to deny a trial as unnecessary, to exclude all of the expert witnesses and most of the other witnesses. Phillips, a Clinton appointee, denied all the motions.
Woods pointed to one specific episode that he said highlighted the contradictions in the government’s case. He said the plaintiffs asked the government to admit that Obama said last year that "don’t ask" weakens national security and that the statement is true. The government admitted Obama made the comment but declined to say whether it was true. After a judge required the government to answer, it denied Obama’s assertion.
“They keep saying they have no choice but to defend the law because it is the law and that’s their job at the Justice Department, but the hypocrisy of this emerges all the time,” Woods said. “They are in a very awkward position.”
There are a few breaks for the administration in the trial set to start this week. The location in Riverside, Calif., far from Washington’s political press, should diminish coverage. And the ban on cameras in federal trial courts means TV coverage will have to rely on courtroom sketches.
But the gay Republicans who filed the case back in 2004 are doing their best to keep the legal and public pressure on the Obama administration. The Log Cabin group said Friday that Woods plans a daily press availability after the trial session, that principals in the case will be readily available to the media, and that the group plans a daily bulletin on trial developments.
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