Copy of Pentagon's DADT survey

I was just sent what appears to be a legitimate copy of the first of two DADT surveys that are being sent to the troops. There are actually two surveys, this is the first.

(Updated) 2010 DoD Comprehensive Review Survey of Uniformed Active Duty and Reserve Service Members Read More...

Big wins, but GLAD expects Obama adminstration to appeal today's DOMA decisions

Just got off a conference call with Attorney General Martha Coakley, GLAD's Mary Bonauto, GLAD's Legal Director Gary Buseck and two of the plaintiffs in the Gill case, Nancy Gill and Marcelle Letourneau.

Bonauto was the lead attorney in the Gill case. I'm so glad she's on our side. So glad. Here's her quote from GLAD's release:

"Today the Court simply affirmed that our country won't tolerate second-class marriages,"

On the call, Coakley spoke briefly. She first congratulated GLAD, then said this decision was "landmark step" and a "victory for civil rights." The Massachusetts case was decided on Tenth amendment grounds.

Mary Bonauto reviewed the decision, focusing on the key pasasge on page 38 of the decision (the full ruling is here):

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

Plaintiff Nancy Gill spoke briefly. She said "I'm so happy I can't even put it into words...we're just thrilled...absolutely thrilled."

Bonauto explained that the Court granted summary judgment, "which means we won." There's been no stay of the decision yet, so, theoretically, the plaintiffs could start to obtain their federal benefits. But, Bonauto fully expects the government to appeal. If that happens, the appeal will go to the First Circuit. In that circuit, appeals are usually handled within a year. Bonauto expects that both the Gill case and Massachusetts case will be on similar schedules through the appeals process. If either case prevails at the Circuit Court, it's expected that the Government would appeal to the Supreme Court.

When asked if the Obama administration has to appeal the decision, Buseck stated that it's expected that the Executive Branch would appeal since it has a responsibility to defend acts of Congress. And, he added, it would be "highly unusual not to appeal."

I have to say, when and if the Obama administration decides to appeal these DOMA rulings, it just will not sit well. Not at all.

We were told this week that the President hasn't spoken to the constitutionality of DOMA yet. But, today, a federal court judge did. Twice. So, the Obama administration's DOJ will now have to argue that DOMA is, in fact, constitutional. The DOJ will be arguing that the judge was wrong and DOMA is not an "irrational prejudice" and that it doesn't violate "equal protection principles embodied in the Fifth Amendment to the United States Constitution."

I hope Eric Holder, Tony West and the so-called LGBT Liaison at DOJ, Matt Nosanchuk, all think really long and hard about this. And, the Obama political team better pay attention, too. How they decide to proceed with their appeal is going to be scrutinized very closely and not just from a legal perspective. It will have political ramifications. Read More...

BREAKING: Section 3 of DOMA ruled unconstitutional

Federal District Court Judge Joseph Tauro found Section 3 of DOMA unconstitutional today.

Tauro decided two cases, Gill v. OPM, brought by GLAD, and the Commonwealth of Massachusetts v. HHS, brought by Mass. Attorney General Martha Coakley.

We won in both cases.

GLAD tweeted:

Great news! U.S. District Court held that #DOMA "violates ... equal protection principles." Decision will be posted shortly. Please retweet!

Here's the final paragraph in the Gill decision:

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification.149 As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

I keep finding nuggets in the ruling. This is one of my favorites in the Gill decision, "DOMA fails to pass constitutional muster even under the highly deferential rational basis test." The judge didn't even get to higher scrutiny, because DOMA doesn't even meet the most basic legal test for legislation.

And, here's the conclusion of the Mass. case:

This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

This also means the Department of Justice, OPM and HHS lost today. They'll have to decide if they want to appeal it. That's going to be an interesting decision on their part -- and will have important ramifications.

Here's the Gill Decision:
Decision in Gill v. OPM
Here's the decision in the Massachusetts case:
DOMA decision
UPDATE: I have to add this quote from GLAD's Mary Bonauto:

"Today the Court simply affirmed that our country won't tolerate second-class marriages," said Mary Bonauto, GLAD's Civil Rights Project Director, who argued the case. "I'm pleased that Judge Tauro recognized that married same-sex couples and surviving spouses have been seriously harmed by DOMA and that the plaintiffs deserve the same opportunities to care and provide for each other and for their children that other families enjoy. This ruling will make a real difference for countless families in Massachusetts."

Read More...

Groups 'expressing deep concern' about Pentagon's DADT survey

Kerry Eleveld has an article on concerns raised by the groups working for repeal of DADT. SLDN, the group that represents gay and lesbian servicemembers, spoke our forcefully about the survey this morning. SLDN has been true to its mission throughout the effort to repeal the law. But, you have to know this is a big problem when even HRC is concerned:

Pro-repeal advocacy groups are expressing deep concern about reports of a survey on “don’t ask, don’t tell” repeal that the Pentagon sent Wednesday to about 400,000 active-duty and reserve troops.

Although the groups all say they knew the survey was going to be administered and they all requested access to it in advance of its dissemination, none of the groups have been allowed to see the survey, which was formulated by the research firm Westat. That aside, they uniformly questioned the basic premise of such an endeavor and add that they did not have significant input into the survey’s design and the nature of the questions.

“Our primary concern has always been the need for a survey in the first place,” said Fred Sainz, vice president of communications for the Human Rights Campaign. “To us, it seems anachronistic, demeaning, and not in keeping with the chain of command to ask the service members what they think about integration of gays lesbians into the military.”

Aubrey Sarvis, executive director of Servicemembers Legal Defense Network, pointed out that the Pentagon has never been in the habit of surveying service members about personnel policies. He noted that President Harry Truman conducted no inquiries before racially integrating the military in 1948, nor were troops consulted in the 1970s when the service academies began accepting women or even as recently as within the past years when the Navy decided to allow women to serve on submarines.

“In this context, it seems like a an extraordinary strategic engagement and why is it needed now but wasn’t needed at other points,” Sarvis said.

It sure seems like nothing good can come from this survey. And, it begs the question of why the White House allowed this process to move forward in the way that it has.

Just a historical note: Harry Truman issued Executive Order 9981 to desegregate the military on July 26, 1948. He was facing a tough election in November. And, a Gallup Poll in March of 1948 showed "63% thought that black troops and white troops should remain separated, while 26% thought they should live and work together. But, Truman, who hadn't even been elected in the first place, acted anyway. On the subject of military desegregation, Michael R. Gardner's book, "Harry Truman and Civil Rights: Moral Courage and Political Risks," includes this quote from Civil Rights icon Dorothy Height, who recently pased away:

"Harry Truman's integration of the armed services represented the most significant institutional advance for the civil rights of black Americans since President Lincoln issued the Emancipation Proclamation."

In May of 2010, a CNN poll found that "78 percent of the public supports allowing openly gay people to serve in the military." Read More...

Hero of the Month: Iceland

There have been a number of inspiring stories this past month despite Gov. Lingle's disappointing veto in Hawaii. Let’s recap a few. We can all applaud Ted Olson’s stirring closing argument in Perry v. Schwarzenegger. Justice Ginsburg came to court the day after her husband died to read aloud her opinion in the Hastings Law School case. Against the backdrop of the World Cup, "Chosen Few," a lesbian soccer team, has shown enormous courage while confronting corrective rape and ostracism in South Africa. Vandy Beth Glenn won her federal lawsuit after losing her state job in Georgia for being transgender. And the establishment of civil partnerships in overwhelmingly Catholic Ireland was a seismic shift for that country.

Each of these stories gave me a lift. But the development that inspired me the most happened in Iceland. In case you missed it, that country’s parliament voted 49-0 to institute same-sex marriage. Johanna Sigurdardottir, Iceland’s lesbian prime minister, married her partner the next day.

In praising Iceland, I can’t help starting with Björk, my favorite Icelander and perhaps the world’s best known one. Björk sings of lesbian robots and has been quoted as saying “Personally, I think choosing between men and women is like choosing between cake and ice cream.”

Then there’s Reykyavik Pride. In a nation with a population of 320,000, about 80,000 turn out for the celebration in the capital. That’s one quarter of the country. Reykyavik Pride includes a day-long Rainbow Family Pride Festival where everyone is welcome and people without children are encouraged to “get in touch with their inner child.” Contrast that with the U.S., where LGBTs are still slandered as a threat from whom children must be protected.

When Iceland was in crisis and its economy on the brink of collapse in 2009, Icelanders turned to a lesbian prime minister to steady the ship of state without her sexuality becoming an issue. In the U.S., all things “homosexual” are still used as wedge issues to divert attention from the country’s real problems. Iceland’s sodomy laws were repealed in 1940. Here, they were only overturned six years ago, and Republicans in Texas and Montana would like to see them reinstated.

The apparent lack of controversy in Iceland surrounding LGBT rights is what I find so inspiring and hopeful. I sometimes feel resentful that we and our allies have to spend so much time, talent, money, guts, brainpower and sheer energy advocating for rights we should be able to take for granted, and I look forward to the day when we can turn our efforts to a different purpose. In the meantime, I know we must continue because who will fight for us if we do not do so ourselves?

Iceland gives us a glimpse of what we can look forward to when our rights are affirmed, not fought over. Admittedly, Iceland is a much more homogeneous society than the United States, so we may never achieve unanimity in Congress about gay issues. But I do think the day will come when being LGBT is about as controversial as being left-handed. Read More...

Pentagon survey asks whether DADT should be repealed and about bathrooms/showers

I am getting the feeling that the Family Research Council wrote the Pentagon's DADT survey.

As reported below, SLDN sent out an important warning to gay and lesbian servicemenbers today. The organization "cannot recommend that lesbian, gay, or bisexual service members participate in any survey being administered by the Department of Defense, the Pentagon Working Group, or any third-party contractors."

Every bit of news about this survey is disturbing. This comes via FOX, which means it's probably been directly spoon fed to the reporter from the Pentagon:

As part of the Defense Department's comprehensive review of the "Don't Ask Don't Tell" policy, the survey asks roughly 90 questions (depending on how the questions are answered) and will take about 20 to 30 minutes to complete, according to Pentagon spokesperson Cynthia Smith.

The questionnaire will focus on three areas. First, it asks questions regarding general satisfaction of the force. Second, it asks the servicemember if he has ever served with someone he knew or believed to be homosexual.

The third section asks for opinions on whether or not the law that bans homosexuals from serving openly should be repealed. It asks soldiers to judge if issues such as unit cohesion, recruiting, retention and family readiness would be effected if the law was overturned.

The Pentagon is asking whether the ban should be repealed. Wow. This thing just feels like a recipe for disaster. And, this doesn't help:
Read More...

SLDN warns troops about participating in Pentagon DADT study

The Pentagon has begun its survey of servicemembers on the issue of repealing DADT. Pam Spaulding posted a CNN piece where that network's Pentagon reporter, Barbara Starr, reported on some of the questions:

The survey, which service members can expect to receive via e-mail, asks about such issues as how unit morale or readiness might be affected if a commander is believed to be gay or lesbian; the need to maintain personal standards of conduct; and how repeal might affect willingness to serve in the military.

The survey also asks a number of questions aimed at identifying problems that could occur when troops live and work in close quarters in overseas war zones. For example, the questionnaire asks military members how they would react if they had to share a room, bathrooms, and open-bay showers in a war zone with other service members believed to be gay or lesbian.

Yeah. I saw that Starr interview. This survey just sounds like no good can come from it.

There are almost potentially dangerous implications for gay, lesbian or bisexual servicemembers. This morning, SLDN is telling lesbian, gay or bisexual servicemembers Legal Defense Network that it cannot recommend that they participate in the Pentagon Survey. Here's the press release from SLDN:

Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending "Don't Ask, Don't Tell" (DADT), released the following statement today after learning the Department of Defense is launching a survey to troops concerning DADT. Late last week, SLDN asked the Department of Defense and the Pentagon Working Group for the text of the surveys, more information on possible certificates of confidentiality, and whether DOD or PWG could guarantee immunity from DADT and other armed services rules and regulations for service members who are inadvertently "outed" by the surveys. The Department of Defense was unable to satisfy our request.

Statement from Army Veteran and Servicemembers Legal Defense Network Executive Director Aubrey Sarvis:

"A number of service members have contacted SLDN to seek guidance on surveys concerning the repeal of 'Don't Ask, Don't Tell -- the discriminatory law barring gay and lesbian service members from serving with integrity. At this time SLDN cannot recommend that lesbian, gay, or bisexual service members participate in any survey being administered by the Department of Defense, the Pentagon Working Group, or any third-party contractors. While the surveys are apparently designed to protect the individual's privacy, there is no guarantee of privacy and DOD has not agreed to provide immunity to service members whose privacy may be inadvertently violated or who inadvertently outs himself or herself. If a service member still wishes to participate, he or she should only do so in a manner that does not reveal sexual orientation."

DADT is still the law of the land. Servicemembers are still being discharged under that law. The process for ending DADT is very complicated and still faces many hurdles. This study could be a serious problem for some of the servicembers impacted by the law.

Pam asks the right questions:

Do you think this deck is now stacked against us?

There are lots of questions that this development raises...

* Why was the "Department of Defense was unable to satisfy" SLDN's quite appropriate request to present basic information about a survey that will profoundly affect the fate of LBG service members?

* It's telling that the DOD or PWG could not specifically satisfy any kind of guarantee of privacy to SLDN. And that's not only related to the questions in the survey, mind you, but the actual ability of the Pentagon to prevent leaks. We've already seen that, so Bzzt.

And what will be the ramifications of this response by SLDN - how will the DOD respond? What about the White House have to say?

SLDN is clearly indicating that the survey process is flawed,implemented in a way that jeopardizes the privacy of an unknown number of the selected participants -- that the DOD and PWG decided to move forward with the surveys anyway.

Good questions. Don't expect answers. Read More...