Don't Ask, Don't Tell dies again [ updated ]
9th Circuit lifts stay
The 9th U.S. Circuit Court of Appeals on July 6 lifted its stay of a federal District Court ruling that found the Don't Ask, Don't Tell military gay ban unconstitutional.
As a result, DADT no longer can be enforced anywhere in the world, it's OK to be openly gay in the military, and openly LGB people can sign up to join the military.
The Pentagon said July 8 that it had halted all DADT separation proceedings and is accepting applications from openly gay prospective recruits.
The U.S. government could appeal the lifting of the stay, but there has been no indication it plans to do so. Congress' repeal of DADT will be implemented in three-or-so months under a cumbersome process laid out in the repeal legislation that President Barack Obama signed last December.
In its order lifting its stay, a panel of 9th Circuit judges said: " [ A ] ppellants ... do not contend that [ DADT ] is constitutional. In addition, in the context of the Defense of Marriage Act ... the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. ... ( 'gay and lesbian individuals have suffered a long and significant history of purposeful discrimination' ) ... ( 'there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities' ) . Appellants ... state that the process of repealing [ DADT ] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants ... can no longer satisfy the demanding standard for issuance of a stay."
"We won," said R. Clarke Cooper, executive director of Log Cabin Republicans, the plaintiff in the case. "DADT cannot be enforced or applied! Hooah!"
The legal director of Lambda Legal, Jon Davidson, called the 9th Circuit's order "a quite stunning development."
"It shows just how important it is that the Department of Justice now recognizes that sexual-orientation discrimination should be presumed to be unconstitutional and that courts should examine such discrimination carefully, as the Department of Justice forcefully argued in its brief filed last Friday in our Golinski case [ see separate story ] , which today's 9th Circuit order expressly referenced," Davidson said.
He added that gay members of the military considering coming out might hold off until it's crystal clear that the government isn't going to appeal the 9th Circuit's order.
National Center for Lesbian Rights Executive Director Kate Kendell commented: " ( This ) is the latest in a stunning series of victories in the struggle to end government discrimination against LGBT people. On the heels of last month's vote to end marriage discrimination in the state of New York and the Department of Justice's filing last week of a historic brief urging the court in Karen Golinski's case to strike down the federal Defense of Marriage Act [ see separate story ] , this ruling is another powerful sign of a much larger transformation. For the first time in our nation's history, we are within sight of a time when LGBT people can participate in all aspects of society without fear of being singled out for stigma and discrimination by their own government."
Justice Dept. files groundbreaking pro-gay brief
The Obama administration broke new ground July 1 in a legal brief filed in the case of a San Francisco federal-court employee, Karen Golinski, who has been trying to put her wife on her work health-care plan.
The expansive brief from the Justice Department says the federal Defense of Marriage Act, which prohibits the government from recognizing same-sex marriages, is unconstitutional because governmental classifications based on sexual orientation should be viewed through the legal lens of heightened scrutiny.
That approach should be used, the government said, because "gay and lesbian individuals have suffered a long and significant history of purposeful discrimination," because "sexual orientation is an immutable characteristic," and because "gays and lesbians are a minority group that has historically lacked political power."
The brief says Congress passed DOMA in 1996 in substantial part because of "animus toward gay and lesbian individuals." The document goes on to detail a litany of anti-gay sins of federal, state and local governments over the decades.
"The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals," the brief says.
Lambda Legal's Tara Borelli commented: "The government itself has now forcefully argued that the marriages of same-sex couples cannot be treated as different and inferior under the law, and that any laws that treat lesbian and gay people differently must be reviewed with heightened scrutiny and presumed to be unconstitutional. Lambda Legal has been arguing that for years -- it's great to have them on our side."
"This is an historic shift with enormous significance," Borelli said. "As more courts adopt this analysis, DOMA will fall along with other laws that set lesbian and gay people apart for unequal treatment."
Rhode Island civil-union law takes effect
Rhode Island Gov. Lincoln Chafee signed a civil-union bill July 2 and it took effect immediately.
Although it extends the rights of marriage to civil-union same-sex couples, gay activist groups opposed the law because of concessions made to religious forces.
"The bill contains a provision that would allow religious organizations and their employees to disregard couples' civil-union status, creating unprecedented, onerous and discriminatory hurdles for same-sex couples seeking to take care of one another," said Freedom to Marry and Gay & Lesbian Advocates & Defenders. "In practical terms, this law could allow religiously affiliated hospitals to deny a civil-union spouse's right to be by his spouse's side and make medical decisions for him, and could allow religiously affiliated agencies to deny an employee's right to leave in order to care for his civil-union spouse under Rhode Island Family and Medical Leave."
"Not only does the bill propose a separate-and-unequal status instead of ending the denial of marriage itself, it grants an unprecedented license to discriminate against same-sex couples and their families," said Freedom to Marry's Marc Solomon.
Same-sex marriage is legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and Washington, D.C. Same-sex marriages from elsewhere are recognized as marriages in Maryland, New Mexico, Rhode Island and California ( if the marriage took place before Proposition 8 passed ) .
The U.S. states with civil-union laws that grant all state-level marriage rights are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island and Washington. Four other states have gay-union laws that extend some rights of marriage: Colorado, Maine, Maryland and Wisconsin.
Eleven other nations allow same-sex couples to marry -- Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, Sweden and Mexico ( where same-sex marriages are allowed only in the capital city but are recognized nationwide ) .
LGBT teaching bill passes California Legislature
Governor's position unknown
The California Legislature passed a bill July 5 that amends the state Education Code to require that schools teach about LGBT people's contributions to the economic, political and social development of California and the U.S.
The bill also prohibits classroom instruction and school-sponsored activities that promote a discriminatory bias on the basis of sexual orientation, and requires that newly acquired social-sciences textbooks and other social-sciences instructional material used in California adhere to the bill's requirements.
Sponsored by Sen. Mark Leno, D-San Francisco, the measure cleared the Assembly July 5 in a 49-25 vote. It passed the Senate 23-14 on April 14.
The bill requires "schools to fairly and accurately portray the LGBT civil rights movement and the historic contributions of the diverse LGBT community in social-science instruction," said Equality California.
"The struggle of the multicultural and multiethnic LGBT community in California is one of the greatest stories yet to be told," said EQCA Executive Director Roland Palencia. "It is time for history to accurately depict our community's contributions."
Carolyn Laub, executive director of Gay-Straight Alliance Network, called the bill -- known as the Fair, Accurate, Inclusive, and Respectful ( FAIR ) Education Act -- "a victory not only for the LGBT youth in California who have been fighting to be heard in Sacramento and represented in their history classes, but also for all California youth who deserve to learn a fair and accurate account of California and U.S. history."
According to Leno, the bill rights a long-standing wrong.
"We are selectively censoring history when we exclude LGBT Americans or any other group of people from our textbooks and instructional materials," he said. "We can't tell our youth that it's OK to be yourself and expect them to treat their peers with dignity and respect when we deliberately deny them accurate information about the historical contributions of Americans who happened to be LGBT."
The bill is now on the desk of Gov. Jerry Brown, who has until July 19 to sign, veto or ignore it. If he takes no action, the bill would become law. Brown's spokesman, Evan Westrup, declined to reveal the governor's position on the measure.
Palencia said EQCA has met with Brown's office about the bill.
"We have had two meetings with the governor's office to date, and will continue communicating the importance of the FAIR Education Act and get our community to voice their support for his signature," Palencia said.
The bill is online at tinyurl.com/SB48-a.
Assistance: Bill Kelley
PHOTOS
Marc Solomon. Photo by Rex Wockner
Mark Leno. Photo by Rex Wockner
Kate Kendell. Photo by Rex Wockner
Jon Davidson. Photo by Rex Wockner
