This morning, GETEQUAL sat in on a Senate Armed Services Committee Meeting with John McCain present, holding up signs which read, in part
"Senator McCain repeal Don't Ask Don't Tell, do you want to be the next George Wallace?"
"Senator McCain repeal Don't Ask Don't Tell, it's not too late to change your legacy."
And Senator Majority Leader Harry Reid filed for cloture today on the Defense Authorization Bill, which contains DADT repeal provisions. That should allow a cloture vote on Tuesday, but whether there are sixty votes is still up in the air.
DADT might not end today, or next week, but the momentum is building. And if Congress is not up to doing it, the courts just might finish it off.
Besides Log Cabin Republicans, there a number of other significant court cases regarding LGBT equality pending, being heard, or on appeal. What of them?
Below is a summary status of seven cases involving the Defense of Marriage Act, , Don't Ask, Don't Tell, and same-sex adoption. All important cases that challenge the constitutionality of discrimination against people with non-traditional sexual orientation. And all but one of which have already had an initial ruling stipulating that discrimination on the basis of sexual orientation in and of itself is unconstitutional.
Gill v. Office of Personnel Management
Dispute: Does the United States Government have a right to treat two people united in a same-sex marriage differently than two people united in an opposite-sex marriage? Or does the Defense of Marriage Act, which restricts the definition of marriage for federal purposes to one man and one woman, violate the constitution's equal protection guarantees?
Decision: "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."
- March 3rd, 2009: Suit is filed.
- July 8th, 2010: Judge Tauro issues ruling.
- August 19, 2010: Judge Tauro issues a stay for 60 days to allow time for the government to appeal.
- October 18, 2010: Government must decide whether to appeal or not by this date.
If the government does not appeal, or no stay were issued on appeal, the government would have to recognize same-sex marriages within the state of Massachusetts and provide federal benefits to such married same-sex couples. No other jurisdiction would be affected.
If appealed, the case would move up to the First Circuit Court of Appeals.
If this case is eventually decided favorably by the Supreme Court, it would force the US Government to treat all couples married in the eyes of a state as married for Federal purposes. It would not force states to recognize marriages from other states.
Massachusetts v. United States Department of Health and Human Services
Dispute: Can the United States Government ignore the State of Massachusetts' legal right to declare two people of the same sex married and so deny them Federal benefits, by virtue of the Defense of Marriage Act?
Decision: "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."
- July 8, 2009: Suit is filed.
- July 8, 2010: Judge Tauro issus ruling.
- August 12: Judge Tauro enters his final judgement, giving the government 60 days to appeal.
- October 11, 2010: Government must decide by this date whether to appeal.
If the government does not appeal, or no stay were issued on appeal, the government would have to recognize same-sex marriages recognized by the state of Massachusetts within Massachusetts and provide federal benefits to such married same-sex couples. No other jurisdiction would be affected.
If appealed, the case would move up to the First Circuit Court of Appeals.
In re: Gill
Dispute: Is the 1977 Florida law prohibiting adoption of children by a gay person constitutional with respect to the Florida constitution and/or the US constitution? Florida allows gay couples to be foster parents but not to adopt.
Decision: Florida's adoption ban violated the equal protection rights of the plaintiff and the minor children without a rational basis for doing so.
- 2005: US Supreme Court refuses to hear a challenge to the Florida law,
- November 24, 2008: Judge Lederman issues District Court ruling.
- August 26, 2009: Oral arguments heard before the Florida Third District Court of Appeal.
- ??? : More than a year later, we are still awaiting a decision on the appeal.
Florida is the only state that completely bans adoption by an individual who is gay. Utah bans adoption by any single person if they are cohabitating with someone they are not married to. Most states either allow gay couples to adopt or the law is unclear on the matter.
Adar v Smith established that states must recognize out-of-state adoptions per the Full Faith and Credit Clause of the US Constitution.
However the appeals court rules, the case is likely to be appealed to the Florida Supreme Court. Recently, Florida Governor Crist discussed having Florida drop the case; however both sides as well as Florida's state agencies charged with overseeing adoptions seem to want the issue settled and have pushed back on this idea, demanding that the Florida Supreme Court settle the issue once and for all.
Perry v. Schwarzenegger
Dispute: Does Proposition 8, restricting marriage to one man and one woman, and made part of the California Constitution by the voters of California, violate the US Constitution?
Decision: "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license... the court concludes that Proposition 8 is unconstitutional."
- May, 2008: California Supreme Court in In re Marriage Cases says state statues prohibiting same-sex marriage are unconstitutional.
- November 5, 2008: Proposition 8, overturning In re Marriage Cases, passes 52% - 48%.
- January 11, 2010: Trial begins, with defendant-intervenors arguing for the defense in place of the State of California, which refused to defend the case.
- June 16, 2010: Closing arguments are heard.
- August 4, 2010: Judge Walker issues ruling. A temporary stay is issued.
- August 16, 2010: Ninth Circuit Court of Appeals granted a stay of the decision while ordering an expedited hearing of both the question of standing on the part of the defendant-intervenors and the appeal.
- September 14, 2010: The deadline for the State of California to appeal the decision passes without the State joining the appeal.
- December 6, 2010: Oral arguments in front of a three-judge panel are scheduled to take place.
Both the issue of standing and the case itself are subject to further appeal, either to a larger panel from the Ninth circuit and then to the Supreme Court, or immediately to the Supreme Court.
If standing is denied, and no stay granted, Proposition 8 would no longer be the law in California, and presumably the law would revert to in re Marriage Cases, allowing same-sex marriage.
If standing was allowed, and a decision overturning Proposition 8 was handed down, it is expected that at least a temporary stay would be granted and appeal would follow immediately.
It is possible that the case could persist through 2012, at which time it might be declared moot if California voters, in November of 2012, were to pass a ballot initiative overturning Proposition 8. It is expected that such an initiative will be on the ballot.
Since this case is particular to California and particular to the exact circumstances and wording of Proposition 8, it is not clear what effect a favorable ruling by the Supreme Court would have on the rest of the United States. That would depend on how broad the eventual ruling was.
Log Cabin Republicans v United States of America
Dispute: Is the Don't Ask, Don't Tell policy constitutional?
Decision: "Don't ask, don't tell's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals. For these reasons, Plaintiff is entitled to judgment on behalf of its members on its claim for violation of the First Amendment's guarantees of freedom of speech and petition.
Phillips found that the "sweeping reach" of the restrictions placed on the speech of LGBT military personnel by DADT is "far broader than is reasonably necessary to protect the substantial government interest at stake".
Phillips also found that DADT violates LGBT personnel's right of association, as it prohibits them from openly joining organizations like LRC for fear of reprisal, thereby depriving them of their ability to petition the government for redress of grievances.
Phillips further ruled that DADT violates the substantive due process rights of LGBT personnel as it violates the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
- 2004: Lawsuit is filed.
- July 13, 2010: Trial begins.
- July 23, 2010: Closing arguments are heard.
- September 9, 2010: Judge Philips issues ruling.
- September 16, 2010: As per judge's instructions, plaintiffs submit proposed remedy: an order for the Pentagon to stop enforcing Don't Ask, Don't Tell nationwide.
- September 23, 2010: Government must respond to plaintiffs' proposal with any objections.
- ??? Judge Philips will enter final judgement.
Since this was a facial challenge by the plaintiffs, asserting that there are no circumstances under which Don't Ask, Don't Tell could be constitutional, Judge Philips' ruling, if not stayed, would apply to the entire United States. Therefore the decision is highly likely to be appealed (unlike Witt, which was allowed to stand) and a request for a stay made. If for some reason no appeal were made, or no stay was granted, the Don't Ask, Don't Tell policy would, in theory, be nullified, rendered unconstitutional.
The most important current impact of this decision may be its effect on the Senate as it debates an amendment to the Defense Authorization Bill which would provide authority to the President, the Defense Secretary, and the Chairman of the Joint Chiefs of Staff, to undo the current policy.
Witt v Department of the Air Force
Dispute: Originally, whether the Don't Ask, Don't Tell policy was constitutional. Having been decided that the policy is not constitutional on its face, but is constitutional under certain conditions (e.g., if the military can show that 'unit cohesion' is protected by a dismissal under consideration), the dispute is now whether the Air Force is justified in dismissing Major Witt under this heightened standard.
The so called Witt Standard only applies within the jurisdiction of the Ninth Circuit Court of Appeals (basically the West Coast), because the government chose not to appeal the Ninth Circuit's decision.
Decision: the court reinstated Witt's substantive due process and procedural due process claims and affirmed the dismissal of her Equal Protection claim... Ninth Circuit found that there must be an "important" governmental interest at issue, that DADT must "significantly" further the governmental interest, and that there can be no less intrusive way for the government to advance that interest.
- April 2006: Witt files suit in United States District Court.
- Fall, 2007: Witt's case is dismissed by the District Court. She appeals to the Ninth Circuit.
- November 5, 2007: Oral arguments are heard by a three judge panel of the Ninth Circuit.
- May 21, 2008: The panel issues its ruling.
- May 3, 2009: The government declines to appeal, leaving Witt as binding on the Ninth Circuit. The case is remanded back to District Court for trial under this new standard.
- September 13, 2010: Witt's case began anew in District Court.
At this point the case only directly affects Major Witt. If successful, she would be reinstated as an Air Force officer. If not successful, the court will have concluded that the Air Force did have sufficient reasons to discharge her, even under the Witt Standard.
In theory, any decision could be appealed to the Ninth Circuit.
Fehrenbach v Department of the Air Force
Dispute: Does the Air Force's attempt to discharge Colonel Fehrenbach violate the Witt Standard?
Decision: No trial has yet taken place.
- August 10, 2010: papers are filed requesting a temporary order blocking Fenrenbach's discharge.
- August 19, 2010: The Air Force agrees to give Fehrenbach three weeks notice before a discharge, in order to give him time to request an injunction preventing his dismissal.
- ??? The Air Force provides notice of intent to discharge. Or they do nothing.
You probably can't litigate, so what can you do? Lots. Every day, until a vote on the Defense Authorization Bill is taken:
- You can contact Harry Reid, telling you support the repeal of DADT and passage of the Dream Act
- You can contact your Senators, telling them the same thing.
- You can call the White House, and let President Obama know that you expect nothing less than for him to keep his promises as well.
Harry Reid's Washington office: 202-224-3542
Harry Reid's email: form
White House Comment Line: 202-456-1111
Email the White House: form
Contact information for all Senators: US Senate
If you are a Nevada resident, call Harry Reid as his constituent and tell him what you expect of him.
If you are a US citizen, let Harry Reid, your Senators and the White House know that you expect the United States government to renounce the insanity that is DADT and the deportation of upstanding individuals whose education our tax dollars have paid for and who have known no life but that of a United States resident.
Update: Text of Proposed Judgement and Permanent Injunction in Log Cabin Republicans...
... IT IS ORDERED that the statute and policy known as "Don’t Ask, Don’t
Tell," codified at 10 U.S.C. § 654 and implemented by regulations comprisingDepartment of Defense Directives 1332.14 (1993), 1332.30 (1997), and 1304.26(1993), as modified by Department of Defense Instructions 1332.14 (2008)(incorporating March 29, 2010 changes) and 1332.30 (2008) (incorporating March29, 2010 changes), are declared to infringe the fundamental rights of United States servicemembers and prospective servicemembers and violate (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States
Constitution and (b) the rights to freedom of speech and association and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.
IT IS FURTHER ORDERED that the defendants the United States of
America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, are permanently enjoined from enforcing or applying the statute and policy known as "Don’t Ask, Don’t Tell," including any implementing regulations, against any person under their jurisdiction or command, and from taking any actions whatsoever, or permitting any person or entity to take
any action whatsoever, against gay or lesbian servicemembers, or prospective servicemembers, that in any way affects, impedes, interferes with, or influences their military status, advancement, evaluation, duty assignment, duty location, promotion, enlistment or reenlistment based upon their sexual orientation; and they are further ORDERED to immediately suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under 10 U.S.C. § 654 and/or its implementing regulations on or prior to the date of this Judgment...
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