Get Equal announced plans today to protest the National Prayer Breakfast, an annual D.C. event attended by many D.C. luminaries, including the president, that is slated for Thursday, Feb. 3. The event has prompted protest in recent years due to the fact that it is sponsored by The Fellowship, also known as The Family, which has had connections to anti-LGBT activity in the U.S. and elsewhere, including Uganda.

It was at the breakfast in 2010 that President Barack Obama made a strong statement of opposition to the Anti-Homosexuality Bill that has been under consideration in Uganda, saying, "We may disagree about gay marriage, but surely we can agree that it is unconscionable to target gays and lesbians for who they are — whether it's here in the United States or, as Hillary [Clinton] mentioned, more extremely in odious laws that are being proposed most recently in Uganda."

Get Equal managing director Heather Cronk wrote in an email sent today to supporters, "As Americans, we must act now to prevent an entire segment of Ugandan society from being eradicated -- and we must expose the Americans who are using American money and political influence to perpetuate the hysteria that will get this legislation passed. We must act now to intercede in the imprisonment or death of more of our Ugandan sisters and brothers -- and to make it clear that eradicating us, whether in Africa or America, will not be tolerated."

This year, the event is taking place in the wake of last week's killing of Uganda LGBT equality activist David Kato, raising -- yet again -- the ongoing dangers of being lesbian, gay, bisexual or transgender in Uganda, as well as the role that The Fellowship has played in pushing anti-LGBT equality sentiments in the country.

Cronk continued, writing, "But we're not letting this event take place without confronting attendees with the truth about its organizers. Will you add your name to our petitions to Members of Congress and the President, letting them know about the dangers of this group?

"This Thursday during the breakfast, GetEQUAL DC -- local GetEQUAL organizers who live in the DC area -- will be outside this sham 'prayer' breakfast. We'll be joined by faith leaders who represent the best of world religions -- those who ... seek to do justice."

Get Equal provided additional information about the protest here. In the past, Truth Wins Out had organized a counter-event, the American Prayer Hour, to voice its opposition to the National Prayer Breakfast, but no information was available immediately regarding TWO's plans this year.

In a Friday evening ruling issued by the clerk's office for the U.S. Court of Appeals for the Ninth Circuit, the government's attempt to put the Log Cabin Republicans' challenge to "Don't Ask, Don't Tell" on hold was denied.

LCR had opposed the motion in a filing earlier this month.

In the brief order in Log Cabin Republicans v. United States, however, the court also granted the government's request for additional time to prepare its briefing.

The order stated:

The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government’s opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans’ answering brief and supplemental excerpts of record are due March 28, 2011; and the government’s reply brief is due 14 days after service of the answering brief.

As such, briefing would be completed no later than April 11. At some point after that reply brief filing, the Ninth Circuit will decide whether oral argument will be held on the case, and, if so, schedule it.

The loss came on the heels of the Friday statement about the ongoing enforcement of DADT at a Pentagon news conference. Undersecretary of Defense for Personnel and Readiness Clifford Stanley there told reporters, "It is still possible for a person to be discharged [under DADT]. I have heard nothing about a moratorium."

Read the court's order: lcr.pdf

[UPDATE: Read the full story on today's briefing here.]

Calling the implementation of "Don't Ask, Don't Tell" repeal a "milestone event" for the Defense Department, Defense Secretary Robert Gates announced today that repeal implementation "must be accomplished across the entire Department at the same time" and occur "in a deliberate and careful manner."

In a memorandum to Undersecretary of Defense for Personnel and Readiness Clifford Stanley that was provided to Metro Weekly, Gates directed Stanley on what he called the "solid foundation" for the implementation of the Don't Ask, Don't Tell Repeal Act.

The "terms of reference" for DADT repeal implementation are laid out in a four-page document that follows the letter. In a follow-up memorandum, Stanley details the "DADT Repeal Policy Guidance" in a memo and six-page document.
 
Stanley and Vice Chairman of the Joint Chiefs of Staff Gen. James Cartwright briefed reporters on the documents this afternoon.

Read the Gates memo and "terms of reference" document: IMPLEMENTATION OF REPEAL OF 10 USC 654 Memo & TOR.PDF

Read Stanley's policy memo: Policy Memo Signed.pdf

The U.S. Court of Appeals for the Ninth Circuit, in considering whether the proponents of California's Proposition 8 even have the legal ability to appeal the trial court decision in Perry v. Schwarzenegger, decided on Jan. 4 to send a request to the California Supreme Court. The federal appellate panel asked the state high court how it interpreted an area of state law relating to standing, which is a constitutional requirement for cases heard by federal courts.

The federal court is looking for an answer to what is called a "certified question" asking whether California's constitution or laws give initiative proponents "either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity."

Over the past week, the parties have submitted their views of the matter to the California Supreme Court, which is yet to decide if it's going to decide the question or not. Under California's court rules, "any party or other person or entity wanting to support or oppose the request must send a letter to the Supreme Court" within 20 days of the certification -- which was Monday, Jan. 24.

The attorneys for the proponents told the California Supreme Court that it should accept the certified question, arguing that the question "is of overriding importance" because the Ninth Circuit's jurisdiction to hear the appeal "depends upon Proponents' standing." More broadly, the lawyers assert that "the importance of the question presented to this Court extends beyond the specific context of Proposition 8 to the very integrity of the initiative process itself."

Proponents of initiatives should be able to defend the initiatives in court when state officeholders decline to do so, the proponents' lawyers argue, "to maintain[] the integrity of the precious initiative right."

Lawyers for the plaintiffs in the Perry case -- same-sex couples who wish to marry and, therefore, oppose Proposition 8 -- argue that the California court should not take the certified question because the "particularized interest" inquiry is a federal one the resolution of which the California court "cannot provide any unique insights" and the "State's interest," the lawyers argue, is "well-settled" in the negative. This is, in part, because "the Attorney General has the discretion to decide whether to defend an unconstitutional measure or to appeal an adverse judgment."

Additionally, they argue, "[g]ranting the certification request would needlessly prolong the resolution of this case and impose additional, irreparable harm on plaintiffs."

Within 10 days of this initial round of letters, "any party may send a reply letter to the Supreme Court" -- meaning, by Feb. 3 for the last letter. Once all of the letters have been submitted, a majority of the court must decide to accept the question in order to take the matter.

If the court decides to take the matter, under the rules, a full briefing schedule of support and opposition to the certified question would take place, with oral argument likely to follow. Then, the opinion of the court would be directed to the Ninth Circuit, which would then decide how that opinion impacts the question of whether the Proposition 8 proponents have standing to appeal the Perry decision striking down Proposition 8.

Only then, if it decides the proponents have standing, would the Ninth Circuit decide the merits of the case challenging the constitutionality of Proposition 8.

Read the letters to the California Supreme Court:

• The letter for the proponents: CooperKirkLtr.pdf
• The letter for the plaintiffs: GibsonDunnLtr.pdf

[Photo: Elton John, right, with Ted Olson, attorney for the Perry plaintiffs, at a January 2011 event benefiting the American Foundation for Equal Rights, which has brought the Proposition 8 lawsuit. (Photo courtesy of AFER by Alex J. Berliner/abimages.)]

President Barack Obama, following up on an earlier statement today from Secretary of State Hillary Clinton, issued a statement this afternoon condemning the killing of David Kato, an LGBT rights activist in Uganda.

Saying that "David showed tremendous courage in speaking out against hate," Obama stated that "LGBT rights are not special rights; they are human rights."

He concluded, "My Administration will continue to strongly support human rights and assistance work on behalf of LGBT persons abroad. We do this because we recognize the threat faced by leaders like David Kato, and we share their commitment to advancing freedom, fairness, and equality for all."

Clinton's statement went into more detail, with the secretary saying, "As an advocate for the group Sexual Minorities Uganda, he worked to defend the rights of lesbian, gay, bisexual, and transgender individuals. His efforts resulted in groundbreaking recognition for Uganda's LGBT community, including the Uganda Human Rights Commission's October 2010 statement on the unconstitutionality of Uganda's draft 'anti-homosexuality bill' and the Ugandan High Court's January 3 ruling safeguarding all Ugandans' right to privacy and the preservation of human dignity."

For further information, Box Turtle Bulletin has been one of the leading sources for accurate, up-to-the-minute information about the situation for LGBT people in Uganda in recent years. This week was no different, with Jim Burroway reporting on the news on Wednesday night, Jan. 26.

President Obama's full statement is below the jump.

In response to an inquiry, a Pentagon spokesperson confirmed to Metro Weekly that the Pentagon has a news conference planned for Friday, Jan. 28, to discuss implementation of the repeal of "Don't Ask, Don't Tell."

The Associated Press obtained additional information about the Friday news conference, reporting that "Pentagon leaders will roll out a plan Friday that is expected to give the military services about three months to train their forces on the new law allowing gays to serve openly, officials said Wednesday."

The news comes less than a day after President Barack Obama said in the State of the Union that "[s]tarting this year, no American will be forbidden from serving the country they love because of who they love."

The AP report also detailed:

The plan, [Pentagon officials] said, will outline the personnel, recruiting and other regulations that must be changed. It will describe three levels of training for the troops, their commanders and the key administrators, recruiters and other leaders who will have to help implement the changes.

Under that training schedule, full implementation of the law could begin later this summer. Once the training is complete, the president and his top military advisers must certify that lifting the ban won't hurt troops' ability to fight. Sixty days after certification, the law would take effect.

Today, President Barack Obama announced the nomination of J. Paul Oetken to serve as a U.S. District Court judge on the Southern District of New York.

Oetken would be the second out LGBT member of the Southern District of New York court, joining U.S. District Court Judge Deborah Batts. Batts, a black lesbian, was nominated by President Clinton in 1994 and was the first out LGBT federal judge confirmed by the U.S. Senate in the country.

Oetken served in the Clinton administration as both an associate counsel to the White House and, earlier, in the Department of Justice as an attorney-advisor in the Office of Legal Counsel.

Tony Varona, associate dean and professor of law at American University's Washington College of Law, praised the nomination. 

Varona, the former general counsel and legal director at the Human Rights Campaign, told Metro Weekly, "Paul, an old friend, boasts a brilliant and rigorous legal mind, a sharp wit, as well as sterling academic and professional credentials.

"Just as important is that he also has the native judgment and temperament that make for the best jurists," he said. "He would be an impartial and fair judge -- and a source of great pride for the Obama Administration as well as the LGBT community."

David Lat, managing editor of Above the Law -- the leading legal gossip blog -- noted the significance of the Southern District of New York.

"The Southern District of New York is the nation's most prestigious trial court," he wrote to Metro Weekly. "Judges in the S.D.N.Y. handle some of the country's most important cases, from gigantic financial frauds to high-profile terrorism prosecutions.

"It's unmatched in cachet, and it has an all-star bench. Paul will fit right in."

Oetken's nomination was sent to the Senate today. The Senate Judiciary Committee will consider the nomination before the full Senate will consider it. Then, the full Senate will need to approve the nomination before Oetken actually would take a spot on the bench.

Among Oetken's other work, he represented the National Lesbian and Gay Law Association in submitting its amicus curiae, or friend of the court, brief in Lawrence v. Texas in 2003. In the case, which resulted in striking down all sodomy laws in the nation, Oetken co-authored the brief with Chai Feldblum, who serves as a commissioner of the U.S. Equal Employment Opportunity Commission.

In summarizing their arguments, they wrote on behalf of the National Lesbian and Gay Law Association and several other legal groups:

The Texas Homosexual Conduct Law violates principles that are basic to the Equal Protection Clause of the Fourteenth Amendment. As this Court reiterated in Romer v. Evans, 517 U.S. 620, 632 (1996), animosity toward a group of people is not a legitimate purpose for governmental discrimination against such a group. The State of Texas acknowledges, however, that its discriminatory sexual conduct law is justified solely by the fact that the "electorate evidently continues to believe" that such a discriminatory law correctly reflects the majority's moral views. As Petitioners' Brief makes clear, the Texas law fails muster even under the least stringent level of judicial scrutiny--that of rational basis review. In the words of the dissenters below, "the contention that the same conduct is moral for some but not for others merely repeats, rather than legitimizes, the Legislature's unconstitutional edict."

Nevertheless, should this Court choose to rule on the question whether classifications based on sexual orientation must satisfy a higher standard than rational basis review--an action that was unnecessary in Romer -- this Court should rule that such classifications warrant heightened scrutiny.

Although the court struck down the law, it did not rule on whether sexual orientation classifications should be subject to "heightened" equal protection scrutiny.

Oetken's biography, from the White House:

J. Paul Oetken: Nominee for the United States District Court for the Southern District of New York

J. Paul Oetken is Senior Vice President and Associate General Counsel of Cablevision Systems Corporation in Bethpage, New York, a position he has held since 2004.  Prior to joining Cablevision, Oetken worked at Debevoise & Plimpton, where he was counsel from 2003 to 2004 and an associate from 2001 to 2003.  Oetken joined the White House Counsel’s Office as Associate Counsel to the President in 1999 and worked there until 2001.  From 1997 to 1999, Oetken was an attorney-advisor with the U.S. Department of Justice in the Office of Legal Counsel.  Prior to that, he worked as an associate at Jenner & Block for approximately two years.  From 1993 to 1994, Oetken served as a law clerk for the Honorable Harry A. Blackmun of the U.S. Supreme Court; from 1992 to 1993, he served as a law clerk for the Honorable Louis F. Oberdorfer of the U.S. District Court for the District of Columbia; and from 1991 to 1992, he served as a law clerk for the Honorable Judge Richard D. Cudahy of the U.S. Court of Appeals for the Seventh Circuit.  Oetken received his J.D. in 1991 from Yale Law School, and his B.A. with highest distinction in 1988 from the University of Iowa.

Today, President Barack Obama announced that he had named Roberta Achtenberg to the U.S. Civil Rights Commission. Although Achtenberg has a long resume and list of accomplishments, she is best known in LGBT history for the attacks she faced in the '90s from then-Sen. Jesse Helms (R-N.C.).

Achtenberg, a civil rights attorney and former San Francisco commissioner, served assistant secretary for fair housing and equal opportunity in the U.S. Department of Housing and Urban Development under President Bill Clinton. The first openly LGBT person approved for a Senate-confirmed position, it was during the Senate's consideration of her nomination that Helms said he would not support her nomination "because she's damn lesbian." He later said that his problem was that Achtenberg was a lesbian activist, not simply a lesbian, but the line stuck.

In 2008, she served as one of the initial members of the Health and Human Services transition advisory committee for Obama following his presidential election. Achtenberg had, though, been an early supporter of now-Secretary of State Hillary Clinton's presidential campaign, serving on the LGBT Americans for Hillary steering committee during the Democratic primary.

The U.S. Civil Rights Commission does not have enforcement authority, but it reports that its mission includes the ability to "investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices."

It also, according to the commission, "stud[ies] and collect[s] information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice."

Human Rights Campaign president Joe Solmonese said in a statement, "Roberta Achtenberg is a public servant of the highest caliber and will be a critical voice on the commission in ensuring that the civil rights of all Americans are protected. LGBT equality is the civil rights issue of our time and this position will allow her to bring our community’s concerns front and center in the national dialogue."

Additionally, Obama named Jeffrey Levi -- who ran the National Gay and Lesbian Task Force's Washington, D.C., office in the early days of the AIDS crisis -- as a member of the Advisory Group on Prevention, Health Promotion, and Integrative and Public Health. According to the White House information released today, Levi currently is the executive director of Trust for America's Health, a non-profit, non-partisan organization dedicated to making disease prevention a national priority.

In 2010, President Barack Obama took the opportunity to use the State of the Union to declare that he would "work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are."

A year later, poised to looking out over a very different chamber -- more than 70 additional Republicans are in Congress now than then -- Obama's promise to the LGBT community -- and the nation -- was slated to be far more modest, though significant.

"Starting this year, no American will be forbidden from serving the country they love because of who they love," Obama is to say in tonight's State of the Union, according a draft copy of the speech obtained and published by the National Journal.

The line was to be preceded by an acknowledgment of the diversity of the nation's servicemembers.

"Our troops come from every corner of this country -- they are black, white, Latino, Asian and Native American," Obama is to say, according to the draft remarks published by the National Journal. "They are Christian and Hindu, Jewish and Muslim. And, yes, we know that some of them are gay."

The news that Obama intends to have open gay service in 2011 puts some specifics in the timeline for implementation of the Don't Ask, Don't Tell Repeal Act that previously had an unclear ending -- although other administration officials previously had said that the required certification timing would be "months."

Under the act, which was signed into law by Obama on Dec. 22, 2010, repeal will not happen until the president, Defense secretary and chairman of the Joint Chiefs of Staff certify to Congress that the changes needed to implement repeal are "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces." After the certification, another 60 days -- for congressional review -- need to pass before the repeal will take effect.

According to the National Journal’s copy of the draft remarks, Obama also will be addressing a related issue raised at the confirmation hearing of his second Supreme Court nominee, now-Justice Elena Kagan.

Following repeal, Obama is to say, "I call on all of our college campuses to open their doors to our military recruiters and the ROTC. It is time to leave behind the divisive battles of the past. It is time to move forward as one nation."

[UPDATE @ 8PM: The White House has released the full prepared remarks, which confirm the National Journal's report. Read the full State of the Union, as prepared for delivery, below the jump.]

[Photo: President Obama signing the DADT Repeal Act in December 2010. (Photo by Ward Morrison.)]

Following Monday's lowered expectations from the Human Rights Campaign for President Barack Obama's State of the Union adress tonight, National Gay and Lesbian Task Force executive director Rea Carey shared with Metro Weekly some thoughts about the ways in which Obama could include LGBT Americans even without promoting a specific LGBT initiative.

She wrote, "I'd really like to see him include our lives, our families in the same way he talks of the lives of others. For example, 'Jane Smith and her wife Mary have a business in Springfield, Massachusetts and they have struggled to provide health benefits for their employees in this challenging economy...." Or, 'This country is made up of brave men and women, like Daniel Hernandez of Tucson, Arizona, a Latino, gay student leader who surely saved Congresswoman Giffords' life as he rushed towards danger, not away from it.'"

And, if not?

"If there is no mention of our lives, our families in the fabric of his speech, I will be disappointed. Last year, he talked about repealing Don't Ask, Don't Tell, and he then worked to repeal it in the same year. Words can have power if actions are taken to make them reality," Carey wrote. "And, while we would hope President Obama will commit in his State of the Union address to fighting for LGBT equality, he will ultimately be measured by his actions and the leadership he exerts."

How so?

"If the president is truly serious about job creation and boosting the economic well-being of people in this country, he must provide leadership in helping to pass employment protections for LGBT people and ending the unjust federal marriage ban," she wrote. "We will continue to press him on these and other issues that are so critical to LGBT people and our families no matter what he says or doesn't say tonight."

[Photo: Carey (Photo courtesy of NGLTF.)]

She's no Andrew Breitbart -- a good thing to some -- but Liz Mair is the former online communications director at the Republican National Committee and the newest advisory board member of GOProud.

In the news release from GOProud, Mair said:

"As someone who has supported GOProud's mission from the beginning, I'm very excited to be joining its Advisory Council.  GOProud does an amazing job advocating for limited government, free market economic principles, and a robust foreign policy -- all items of significant interest to gay conservatives, their allies, conservative activists more generally, and countless other Americans across the country.

I look forward to helping GOProud in that mission and in breaking down the myth that one party and one ideology should have a monopoly on political support from gay Americans."

Mair worked at the RNC during the 2008 elections and advised Carly Fiorina in her failed bid to unseat Sen. Barbara Boxer (D-Calif.) in 2010. GOProud had endorsed Fiorina, one of only two Senate endorsements made by the group. (The other was Sen. Mark Kirk (R-Ill.).)

For a former RNC staffer to be joining up to advance the efforts of GOProud now is just one more sign of the changing dynamics in the Republican Party -- and the country.

Read the full GOProud newsrelease below the jump.

This morning, The Hill reported that the chairman of the influential conservative Republican Study Committee, which boasts 175 members, plans to introduce legislation "that would ban gay marriage in the nation's capital" -- prompting a rebuke from a gay Republican group.

Rep. Jim Jordan (R-Ohio), who pushed a similar measure in the 111th Congress, told The Hill that he's a strong supporter of the effort, which would be unlikely to be voted on or passed in the Senate or to be signed by President Barack Obama.

Jordan, nonetheless, told The Hill, "I think RSC will push for it, and I'm certainly strongly for it. I don't know if we've made a decision if I'll do it or let another member do it, but I'm 100 percent for it"

R. Clarke Cooper, the executive director of Log Cabin Republicans, opposed the effort -- also strongly.

"While Log Cabin Republicans support Chairman Jordan's efforts to rein in government spending, we strongly protest a House vote that would be a direct incursion on state's rights," Cooper told Metro Weekly. "For the House of Representatives to roll back D.C. marriage equality would be an anti-conservative expansion of federal authority."

Human Rights Campaign spokesman Michael Cole-Schwartz told Metro Weekly, "It's too bad that right out of the gate, congressmen who called for less government are seeking to impose a federal mandate on D.C.'s local affairs.

"After an overwhelming vote by their city council, the District now welcomes all loving couples into the institution of marriage," Cole-Schwartz wrote. "The American people are certainly not clamoring for Congress to deny rights to people."

Del. Eleanor Holmes Norton (D-D.C.) was unavailable for comment, according to her press office.

[Photo: Jordan]

On Friday, Jan. 21, Human Rights Campaign vice president Fred Sainz told The New York Times, "This past year Americans were confronted with the epidemic of bullying against lesbian, gay, bisexual and transgender young people that goes on in our schools. The State of the Union address would be an appropriate time for the president to assert leadership on this moral issue and call on all schools to address the problem head on."

That itself was a lower bar for President Barack Obama than others -- hoping for a presidential statement seeking the repeal of the Defense of Marriage Act or even announcing his personal support for marriage equality -- had set.

Today, however, Sainz was talking down the importance of Tuesday's State of the Union address at all, telling Metro Weekly, "The State of the Union is just that. It is not an exhaustive accounting of all the administration's priorities or responsibilities over the year."

He added, "There are plenty of other speech opportunities that the president has over the year."

Among other topics, Sainz said he wished for Obama to include "his evolution toward marriage equality," "evidence of his support of equality for all Americans, including LGBT Americans, including employment protections" and "the importance of safe schools for all American children."

But, ratcheting down expectations again, he noted, "I just don't think that this is a speech that we should put all our eggs in this basket." The comment is notable coming not just from any LGBT organization but from the spokesman for the LGBT group known, and often criticized, for its close relationship with the White House.

In terms of the broader expectations for the speech, White House spokesman Robert Gibbs today said Obama would "spend most of his time talking about the economy, talking about the challenges that we face both in the short term in terms of doing whatever we can to help create jobs, in the medium and long term to continue working on issues like competitiveness and innovation, and ensuring that in the medium and the long term we get our fiscal house in order."

On LGBT issues, Sainz did note, "I believe that whether it's in the president's speech or not, that keeping a discussion of marriage equality front and center is important."

A White House aide confirmed this morning to Metro Weekly the report from ABC News that Daniel Hernandez Jr. -- the out gay, Hispanic college student who came to the aide of Rep. Gabrielle Giffords (D-Ariz.) -- would be attending the State of the Union.

The expectations that Sainz appears to be bringing to the State of the Union -- low to none -- would mark a stark contrast to last year, when Obama laid out his commitment to end "Don't Ask, Don't Tell."

On Jan. 27, 2010, Obama told the nation, "This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are."

That was followed up days later by the testimony of Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, and Defense Secretary Robert Gates in support of DADT repeal, which set off the year of debate that ended with Obama signing the DADT Repeal Act into law on Dec. 22, 2010.

Daniel Hernandez Jr., the intern who aided Rep. Gabrielle Giffords (D-Ariz.) until medical personnel arrived after she was shot earlier this month, will be attending President Barack Obama's State of the Union address on Tuesday, Jan. 25, as a guest of Michelle Obama, according to ABC News.

Hernandez -- an out gay, Hispanic college student -- has received praise from local officials up to and including Obama himself for his actions on Jan. 8.

From ABC:

[Hernandez said,] "I'm both honored and excited to have the opportunity to travel to our nation's Capitol for a once in a lifetime event. Also the chance to bring my father along for his first trip to Washington, D.C. The State of the Union is a pivotal moment because it is our opportunity to find where we are and where we will be going as a nation in this upcoming year."

The prospect of Hernandez being invited to attend the speech was raised by bloggers and on Twitter and Facebook in the days after the shooting, including when Hernandez spoke at the memorial event at which Obama also spoke that was held in Arizona earlier this month.

Tuesday, incidentally, will be Hernandez's 21st birthday, according to his profile on Facebook.

Meanwhile, the Associated Press reports that "[t]he next step [in the criminal case related to the shooting] is an arraignment scheduled Monday afternoon in Phoenix for [Jared] Loughner, who is accused of opening fire on a Giffords political event two weeks ago in a rampage that wounded 13 people and killed six others, including a federal judge and a 9-year-old girl born on Sept. 11, 2001."

[Photo: Hernandez and Giffords. (Photo from Facebook.)]

According to a report released today by the Government Accountability Office, 40 percent of the servicemembers discharged under "Don't Ask, Don't Tell" from 2004 through 2009 "held skills in a critical occupation, an important foreign language, or both, as determined by us and the services."

The 40 percent represents nearly 1,500 servicemembers of the 3,664 servicemembers discharged in the six-year period under review, according to the "Personnel and Cost Data Associated with Implementing DOD's Homosexual Conduct Policy" report.

The report further found that 10 percent -- or 148 -- of the separated servicemembers who held skills in critical occupations held intelligence-related skills. The report states, "Examples of intelligence-related critical occupations include human intelligence collector, cryptologic technician (interpretive), intelligence specialist, and airborne cryptologic language analyst."

As The Washington Post's Ed O'Keefe reported, one of the primary findings of the GAO report is that "[t]he military spent about $193.3 million between 2004 and 2009 to replace approximately 3,660 troops discharged under" DADT.

The report was requested by Rep. Susan Davis (D-Calif.), who was the chairwoman of the Military Personnel Subcommittee of the House Armed Services Committee in the 111th Congress.

Read the GAO report: GAO-DADTRpt.pdf

Today, Department of Housing and Urban Development Secretary Shaun Donovan unveiled new regulations being proposed by HUD that would prohibit discrimination on the basis of sexual orientation or gender identity in several of the federal agency's programs -- from government-backed mortgages to public housing.

The summary of the proposed rule states, "There is evidence ... that lesbian, gay, bisexual, and transgender (LGBT) individuals and families are being arbitrarily excluded from some housing opportunities in the private sector. Through this proposed rule, HUD strives to ensure that its core programs are open to all eligible individuals and families regardless of sexual orientation or gender identity."

Donovan today told reporters on a conference call that "over the last 24 months, we have worked to ensure that HUD's programs are open to all." Today's action, he explained, was "another important step" in doing that.

Most notably, the rules would prohibit lenders from using sexual orientation or gender identity as a basis to determine a borrower's eligibility for Federal Housing Administration-insured mortgage financing. 

Donovan noted that this rule would have a significant impact because the "FHA represents one-third of all mortgages in this country." HUD officials later clarified that this would mean that private lenders seeking to issue FHA-insured loans would be required to follow the new rules.

Additionally, Donovan said that the rules today proposed clarify that "the term 'family' includes LGBT families and couples" as covered individuals and families in all HUD programs.

The proposed rule states, "The majority of HUD's rental housing and homeownership programs already interpret 'family' broadly. ... This proposed rule clarifies that families who otherwise eligible for HUD programs may not be excluded because one or more members of the family may be an LGBT individual or have an LGBT relationship or be perceived to be such an individual or in such relationship."

Finally, Donovan said the proposed rule "prohibits inquiries regarding sexual orientation or gender identity" in all HUD-assisted housing, or housing whose financing is insured by HUD. HUD Assistant Secretary for Fair Housing and Equal Opportunity John Trasviña clarified that local public housing authorities would be required to follow the new rules.

A HUD spokesman said that "4.4 million units across the country" would be impacted by this portion of the rule, noting "that includes public housing, Section 8 vouchers and multi-family housing that's assisted through HUD funding."

Rep. Jerrold Nadler (D-N.Y.) released a statement praising the move.

"I am very pleased that HUD is taking this important step toward protecting the LGBT community from housing discrimination," Nadler said. "For far too long, housing discrimination against LGBT Americans has been tolerated or ignored, and these new regulations will advance our efforts to reject prejudice in the housing market."

National Gay and Lesbian Task Force executive direct Rea Carey said in a statement, "These are critically important reforms given that lesbian, gay, bisexual and transgender people remain particularly vulnerable in seeking or retaining housing due to widespread bias, discrimination and a lack of housing protections."

Trasviña said the rule made available today will be published in the Federal Register on Jan. 24, which will then put in motion a 60-day public comment period that will end on March 25. A spokesman for the department said that publication of the final rules will depend upon the volume of comments received and any necessary changes to them. He said that he expects the final rule to be published before the end of 2011.

View the proposed rule: huddoc.pdf

This news just in from GOProud is sure to rankle what GOProud's Chris Barron calls "the gay left." From the conservative gay group:

GOProud, the only national organization of gay conservatives and their allies, announced that conservative media mogul Andrew Breitbart will join the organization’s Advisory Council. 

"Andrew Breitbart is one of the most influential voices in the conservative movement today," said Christopher Barron, Chairman of GOProud’s Board.  "We are thrilled to have him as part of the GOProud team."

The move comes as Equality Matters -- a project of Breitbart's nemesis of sorts, Media Matters for America -- begins ramping up. Kerry Eleveld -- formerly of The Advocate -- was slated to begin as Equality Matters's online editor this week.

The timing seems too much to be chance, but regardless, it seems guaranteed that these two happenings mean that the online left-right LGBT fireworks are going to be moving up to a new level in the new year.

The full release is below the jump.

[Photo: Breitbart. (Photo from Twitter.)]

Sen. Joseph Lieberman (I-Conn.) -- one of the key champions of "Don't Ask, Don't Tell" repeal in the Senate -- announces his Senate retirement: Live via MSNBC now.

From The Washington Post's Greg Sargent, who received an advance copy of the speech, some of Lieberman's announcement:

My interest in public service was inspired by President John F. Kennedy, who -- coincidentally 50 years ago tomorrow in his Inaugural Address -- asked us to ask ourselves what we could do for our country and challenged us to bear any burden to assure the survival and success of liberty.

The politics of President Kennedy -- service to country, support of civil rights and social justice, pro-growth economic and tax policies, and a strong national defense -- are still my politics, and they don't fit neatly into today's partisan political boxes any more either.

In his speech, Lieberman specifically mentioned the work he was able to do to advance equality for "African-Americans, women and gay and lesbian Americans."

Lieberman had pushed for DADT repeal throughout its existence, from his opposition to it in 1993 through his sponsorship of the Don't Ask, Don't Tell Repeal Act this past December.

Noting that he has had forty years in public service, Lieberman says that it is time to turn to a new chapter. He says that after leaving the Senate, he will continue to look for opportunities to continue advancing those issues about which he is passionate.

[Photo: Lieberman speaking at a Servicemembers Legal Defense Network news conference in December 2010. (Photo by Chris Geidner.)]

Today, the U.S. Supreme Court turned down a request by Bishop Harry Jackson and others to hear their case seeking an initiative on marriage equality in the District.

With no comment, the court decision (pdf) puts an end to Jackson's effort to stop the 2009 marriage equality law in D.C. Today's court action in Jackson v. D.C. Board of Elections, however, provides no precedent for elsewhere and represents no view on the merits of the request.

The Supreme Court receives thousands of requests to hear cases annually, yet hears significantly fewer than 100 cases each year. Nearly its entire docket is discretionary, and so today's action -- a denial of the certiorari petition filed by Jackson -- legally signifies nothing other than that the Supreme Court is not going to review the case in question further.

For D.C., though, the action puts an end to the legal questions remaining for marriage equality here.

Jackson had been appealing the D.C. Court of Appeals ruling in July upholding the decision by the D.C. Board of Elections and Ethics that Jackson's proposed marriage initiative was an improper subject of an initiative.

In the July 5-4 decision, the court then held that the Human Rights Act (HRA) limitation in District law, which prohibits initiatives or referendums that would violate the HRA, is permissible. In light of that ruling, all 9 judges of the D.C. court agreed that the proposed marriage initiative would violate the HRA and is, thus, not permitted.

Calling the issue a "relatively obscure matter of law," longtime District gay rights activist Bob Summersgill told Metro Weekly, "This was not about the merits of marriage, it was whether the council in 1979 had the authority to restrict initiatives and referenda from violations of the Human Rights Act."

Out D.C. Councilmember David Catania (I-At Large) said in a statement, "I am grateful to the court. I am also proud of the way our city has embraced this law and want to congratulate the thousands of couples that have married in the District as a result of it."

Summersgill, a new ANC 3F commissioner, also said, "Today's decision means that we really need to thank the GAA activists in 1979 who convinced the Council to do the right thing" by including the HRA limitation in the Initiative, Referendum, and Recall & Procedures Act (IPA).

Summersgill said that the reason for the HRA limitation is that "DC's original council was, by and large, made up of civil rights activists. They firmly believed that a human right is not something that should be subject to popular vote."

Despite the absolutism on that point, he added a counterpoint. 

"This is also a victory for the incremental approach that we took," he said. "Our critics were correct that we could have passed marriage soon, but we could not have kept it. Keeping it was the hard part.

"We see in California and Maine, you can get the law passed -- but if you're not prepared to keep it, you may not. Making sure that we could keep it was the challenge for 10 years."

[Photo: Summersgill (Photo by Todd Franson.)]

Rep. Duncan Hunter (R-Calif.) -- the House's version of Sen. John McCain (R-Ariz.) during the "Don't Ask, Don't Tell" repeal debate -- isn't taking his cues from McCain, who has said he will do "everything" he can to make the implementation of DADT repeal work.

Hunter is heading in the opposite direction, with The Hill reporting that he plans to introduce a bill to amend repeal to require the certification of the service chiefs -- in addition to the already required certification of the president, defense secretary and chairman of the Joint Chiefs of Staff -- that DADT repeal will not negatively impact military readiness and other concerns.

From The Hill:

“The chairman technically speaks for the chiefs, but they should be included in the debate,” said the aide. “The chiefs are the ones carrying the burden of combat on their shoulders.”
 
Hunter’s measure would require the Army, Air Force, Navy and Marine Corps chiefs to submit to the congressional defense committees “written certification that repeal … will not degrade the readiness, effectiveness, cohesion and morale of combat arms units and personnel of the armed force under [each] officer’s jurisdiction engaged in combat, deployed to a combat theater, or preparing for deployment to a combat theater,” according to a copy obtained by The Hill. ...

The aide said Hunter could introduce the bill as soon as Tuesday evening, adding that “15 to 20” members — so far all Republicans — have signed on.

Regardless of what happens in the House, the bill is unlikely to pass in Congress because it likely would meet with strong opposition from Sen. Carl Levin (D-Mich..), the chairman of the Senate Armed Services Committee.

Today, the Department of Justice filed its defense of the Defense of Marriage Act in the U.S. Court of Appeals for the First Circuit in a single filing for both Gill v. Office of Personnel Management and Massachusetts v. United States. This past July, U.S. District Court Judge Joseph Tauro ruled that Section Three of DOMA -- which sets a federal definition for "marriage" and spouse" -- is unconstitutional.

The government announced in October 2010 that it planned to appeal the rulings.

In its defense of the 1996 law, the government today stated:

DOMA is supported by rationales that constitute a sufficient rational basis for the law. For example, as explained below, it is supported by an interest in maintaining the status quo and uniformity on the federal level, and preserving room for the development of policy in the states.

When DOMA was enacted, the institution of marriage had long been understood as a formal relationship between a man and a woman, and state and federal law had been built on that understanding. But our society is evolving, and as is well-established, the “science of government . . . is the science of experiment.” Over the years, the prevailing concept of marriage has been challenged as unfair to a significant element of the population. Recently there has been a growing recognition that the prevailing regime is harmful to gay and lesbian members of our society. That recognition has prompted ongoing dialogue and change in many states, with some states opting to authorize same-sex marriages and other states opting for other forms of legal recognition for same-sex couples, such as civil unions and domestic partnerships. Still other states have reexamined their legal systems and reaffirmed their support of their preexisting concept of marriage and provided that their constitution or laws authorize only marriages between a man and a woman. In the end, the large majority of states today do not recognize same-sex marriage.

Despite that "ongoing dialogue," the government asserts three reasons to justify DOMA's continued validity:

1.    Congress Could Have Rationally Concluded That DOMA Promotes A Legitimate Interest in Preserving a National Status Quo at the Federal Level While States Engage in a Period of Evaluation of and Experience with Opening Marriage to Same-Sex Couples.

2.    Congress Could Reasonably Conclude That DOMA Serves a Legitimate Federal Interest in Uniform Application of Federal Law Within and Across States During a Period When Important State Laws Differ.

3.    Congress Could Reasonably Have Believed That by Maintaining the Status Quo, DOMA Serves the General Federal Interest of Respecting Policy Development among the States While Preserving the Authority of Each Sovereign to Choose its Own Course.

Although each is slightly different, these three "rationales" do read like different shades of the same argument, which is more or less that DOMA made sense -- or, is rational -- because the states hadn't reached a uniform decision.

In addition, the government argues that -- contrary to the trial court decision in the Massachusetts case -- DOMA does not violate either the Spending Clause or the Tenth Amendment to the Constitution.

Read the government's DOMA brief in Gill and Massachusetts: Document.pdf

President Barack Obama tonight addressed Arizona -- and the nation -- at a memorial event held in the wake of the mass-shooting that killed six on Jan. 8 in Arizona.

In key parts, he said:

But at a time when our discourse has become so sharply polarized – at a time when we are far too eager to lay the blame for all that ails the world at the feet of those who think differently than we do – it’s important for us to pause for a moment and make sure that we are talking with each other in a way that heals, not in a way that wounds.

And later:

But what we can’t do is use this tragedy as one more occasion to turn on one another.  As we discuss these issues, let each of us do so with a good dose of humility.  Rather than pointing fingers or assigning blame, let us use this occasion to expand our moral imaginations, to listen to each other more carefully, to sharpen our instincts for empathy, and remind ourselves of all the ways our hopes and dreams are bound together.

And, finally:

So sudden loss causes us to look backward – but it also forces us to look forward, to reflect on the present and the future, on the manner in which we live our lives and nurture our relationships with those who are still with us.  We may ask ourselves if we’ve shown enough kindness and generosity and compassion to the people in our lives.  Perhaps we question whether we are doing right by our children, or our community, and whether our priorities are in order.  We recognize our own mortality, and are reminded that in the fleeting time we have on this earth, what matters is not wealth, or status, or power, or fame – but rather, how well we have loved, and what small part we have played in bettering the lives of others.

The president's full speech, as prepared for delivery, is below the jump.

Today, Citizens for Responsibility and Ethics in Washington filed papers with the Office of Congressional Ethics seeking an investigation into what it claims are constitutional, legal and rule violations resulting from the first-day-of-the-112th-Congress actions of Rep. Mike Fitzpatrick (R-Pa.) and Rep. Pete Sessions (R-Texas).

The two issues for which it is seeking an investigation are Fitzpatrick's action of what CREW calls "holding a fundraiser in the Capitol Visitor Center" and the votes cast by Fitzpatrick and Sessions, who missed the House swearing-in on Jan. 5 because they were at the Fitzpatrick event, before being formally sworn in by House Speaker John Boehner (R-Ohio) the next day.

The Washington Post reports that Fitzpatrick's office, which did not respond to an earlier request for comment from Metro Weekly, responded to them about today's CREW request. From the Post:

A spokesperson for Fitzpatrick said the lawmaker welcomes the CREW review.

"The reception held last week in the Capitol Visitors Center was not a fundraiser," Fitzpatrick spokesperson Darren Smith said. "It was open and free to all comers and held in compliance with the House Ethics Manual."

As Metro Weekly reported earlier, there was an online "ticket" still available for the event even days later that clearly denoted, "$30.00/PP." Today's CREW request goes further, stating that the invitation to the event "lists contribution amounts of $30, $60, $90, $120, and 'other'" and contains specific "Federal Election Law Compliance" information.

Read the CREW request: 01_12_11 Fitpatrick Sessions Complaint.pdf

Word came this evening that Equality Matters, the new Media Matters for America venture that boasts prominent LGBT commentator and former Clinton gay liaison Richard Socarides as its president and former Advocate reporter Kerry Eleveld as its online editor, has secured Trevor Thomas, the communications director for Servicemembers Legal Defense Network, as its programs director.

Socarides said in a statement sent to Metro Weekly, "Trevor's work on behalf of 'don't ask, don't tell' repeal was crucial in shaping the debate and to its successful outcome. His efforts are well known to the Washington press corps and political community, which came to rely on his emailed Media Updates as the gold-standard for reporters and others wanting up-to-date and reliable information.

"He is an incredible advocate and forthright spokesperson. We are excited he has agreed to join us and continue his work on behalf of the lesbian, gay, bisexual and transgender community at Equality Matters."

In an email sent this evening to friends and colleagues that he gave permission for Metro Weekly to publish, he wrote of his time at SLDN, "When I arrived to SLDN, I viewed it broadly as another gay rights group.  It didn't take long to recognize SLDN was a military group first and foremost.  For so many on the staff and board, ending 'Don't Ask' was deeply personal. Many of them were discharged or served in fear and silence.

"In my own life, my brother Ricky enlisted in the United States Army at age 18. My father served in the 126th Infantry of the Michigan National Guard. And my grandfather served as a U.S. Army Corporal during World War II. I've been fortunate to find my own road to pay it forward."

Thomas will leave SLDN now and is set to start with Equality Matters on Jan. 24, one week after Eleveld is set to begin there.

In a filing today before the U.S. Court of Appeals for the Ninth Circuit, the Log Cabin Republicans argue that the government's request to stop the appeal of LCR v. United States while "Don't Ask, Don't Tell" repeal is being completed is unreasonable.

The move was expected, as LCR already had announced that it opposed the government's attempt to put the appeal on hold.

First, they argue that the language of the Don't Ask, Don't Tell Repeal Act is contingent on executive branch action. LCR's lawyers write, "Because repeal has not occurred and will not be effective until some time in the indefinite future, this appeal is not moot and should proceed to judicial resolution."

Moreover, LCR argues that because of that process, the problems with DADT that they had raised at trial continue at this time. LCR argues about the time until repeal is finished:

During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality.  It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises.

Finally, they argue that -- if the appeal is held for the time being as requested by the government -- the Ninth Circuit should lift its stay of the worldwide injunction of DADT enforcement that was issued by the trial court in October 2010.

The government likely will file a reply to today's argument.

Read the LCR brief: LCR-ResponseToGovtMotionJan2011.pdf

At a little before 5 p.m. today, Jan. 8, President Barack Obama addressed the nation regarding today's shooting of more than a dozen people, including a federal judge, U.S. District Judge John Roll, who was shot and killed and an Arizona congresswoman, Rep. Gabrielle Giffords (D-Ariz.), who is in critical condition according to the trauma director at the hospital at which she is being treated.

According to a report from Mark Evans at the Tucson Citizen:

Rep. Gabrielle Giffords is out of surgery and one of her surgeons said "I'm very optimistic about her recovery."

"She was shot one time in the head through and through," Dr. Peter Rhee said at an afternoon news conference at University Medical Center in Tucson.

He said the congresswoman was following commands, a good sign, he said.

Six people, including a girl who was about nine years old, were killed and 18 were injured in the shooting at a Safeway in northwest Tucson at Ina and Oracle roads. The first 911 call came in at 10:11 a.m.

A suspect, identified by the Associated Press as Jared Lee Loughner, is in custody. A YouTube channel was found that matched the information of the shooter and was established well before today's shooting. It contains three posted videos and one video by another party that was "favorited."

Obama said that FBI director Robert Mueller was dispatched to Arizona to direct the invistigation, which is underway. He also said that he had spoken with Arizona Gov. Jan Brewer (R-Ariz.) about the shooting.

"We are still assembling all the facts," Obama said, adding about Giffords: "She is battling for her life."

Later in his brief address, after which he took no questions, Obama said, "It's not surprising that today Gabby was doing what she always does -- listening to the hopes and concerns of her neighbors. 

"That is the essence of what our democracy is all about. That is why this is more than a tragedy for those involved.  It is a tragedy for Arizona and a tragedy for our entire country."

Of Giffords, he added, "Gabby is as tough as they come, and I am hopeful she will pull through."

Giffords is a member of the House LGBT Equality Caucus who displayed her own pride at the repeal of "Don't Ask, Don't Tell" on Twitter when the Senate passed repeal on Dec. 18, writing, "DADT finally repealed! Celebration across Arizona skies tonight. What a glorious day." She included a picture of an Arizona sunset in the tweet.

Judge Roll was an appointee of President George H.W. Bush in 1991 and has been the chief judge for the district court since 2006. He had faced threats in 2009 relating to an immagration case that he heard, which resulted in U.S. Marshals protective service being assigned to him and his wife for a period of time while the threats were being investigated.

Obama's full remarks are below the jump.

One story from this first week of the 112th Congress bears special mention at Poliglot.

Pennsylvania Republican Mike Fitzpatrick defeated Democrat Patrick Murphy in their contest to represent Pennsylvania's eighth congressional district this past November. Murphy, of course, led the House effort in the 111th Congress to repeal "Don't Ask, Don't Tell," so his loss was a disappointment for many -- though not all -- groups and individuals fighting for repeal.

On Wednesday, Jan. 5, though, when the rest of the House was being sworn in, Fitzpatrick and another Republican -- Pete Sessions of Texas -- "skipped the House swearing-in ceremony on Wednesday to attend a gathering of Fitzpatrick supporters elsewhere in the Capitol," according to a report from Kathleen Hennessey at the Los Angeles Times. She continued to report that "Sessions and Fitzpatrick watched the ceremony on a television from the party, they said, and spoke the oath to the tube."

They then went on to cast votes as members, despite, as Hennessey reported, that "the Constitution requires all members to swear an oath before taking office" and "House rules require that the oath to be taken within proximity of the speaker."

When the error was realized, Fitzpatrick and Sessions -- who serves as the National Republican Campaign Committee chair -- were sworn in by Speaker John Boehner (R-Ohio) on Jan. 6. Today, the House also voted to void the votes cast by Fitzpatrick and Sessions prior to their being properly sworn in.

As Todd Gillman at the Dallas Morning News reports, however, "campaign watchdogs and Democrats said questions persist as to whether the duo violated House rules that ban the use of congressional facilities for campaign events."

The Fitpatrick event, which cost supporters $30 according to the website set up by Campaign Financial Services for the event, took place at the Capitol Visitors Center. Today, a message at the event page from Fitzpatrick says, "Thanks to all who attended Wednesday's swearing in ceremony. It was a memorable experience for all of us."

Public Campaign Action Fund is one of the campaign finance watchdogs expressing concerning about the event. 

Public Campaign's communications director, Adam Smith, told Metro Weekly, that his group wanted to know more about the specifics of whether Fitzpatrick raised "campaign money for the campaign committee on Capitol grounds."

He also noted what he viewed as the contrast between Murphy -- who was a co-sponsor of the DISCLOSE Act (Democracy is Strengthened by Casting Light on Spending in Elections Act) -- and Fitzpatrick.

"Rep. Patrick Murphy time and time again did what he believed was best for his district, no matter the political consequences. His replacement, Rep. Mike Fitzpatrick, clearly missed that lesson when he chose to attend a fundraiser instead of taking his oath of office," Smith said. "I'm not sure 'tone deaf' would begin to accurately describe his actions on Wednesday."

A message seeking comment was left with Fitzpatrick's office.

[Image: The "ticket" on the Campaign Financial Services website for the Fitpatrick event that took place on Jan. 5.]

From The Hill today:

Sen. John McCain (R-Ariz.) said Thursday that he would work to help implement the repeal of the military's "Don't ask, don't tell" policy, despite his opposition to that legislation.

McCain signaled that he had made peace with the lame-duck bill to do away with the military's ban on openly gay and lesbian service members, of which he had been an outspoken critic.

"I think I have to do everything I can to make sure that the [impact on the] morale, retention, recruitment and battle effectiveness of the military is minimized as much as possible," McCain said on Fox Business. "It is a law and I have to do whatever I can to help the men and women who are serving, particularly in combat, cope with this new situation. I will do everything I can to make it work."

The move, though late in coming, does signal that -- post-enactment of the DADT Repeal Act -- the atmosphere for those who might attempt to slow-walk repeal on the far right have lost even the support of their prime supporter during the repeal debate.

Today, President Barack Obama sent the name of Edward C. DuMont, a District resident, to the Senate for nomination to be a judge on the United States Court of Appeals for the Federal Circuit. The name was one of a spate of judicial nominees resubmitted to the new 112th Congress after the nominees were not voted on in the 111th Congress.

DuMont's renomination follows the Senate action on Dec. 22 returning the nomination to the president, who had nominated DuMont to the specialty court on April 14, 2010.

Metro Weekly previously reported that DuMont, a lawyer at the WilmerHale law firm, would be the first out gay appellate judge in the country if the Senate approves his nomination.

A nominee to the Federal Circuit, DuMont would sit on a unique appellate court that has its cases determined by the subject of the litigation and not geography -- as is the situation with other federal appellate courts. Among the cases the court hears are those dealing with patent law and certain types of lawsuits against the government.

DuMont was one of eight circuit judge nominees whose names were resubmitted, including one other Federal Circuit nominee -- Jimmie V. Reyna of Maryland. Of the appellate nominees, DuMont was the only one nominated before mid-year in 2010 who did not receive a hearing on his nomination in the Senate Judiciary Committee.

Earlier this week, the press secretary for the Democrats on the Judiciary Committee told Metro Weekly that a hearing had not been held on DuMont's nomination because "[t]here was still some paperwork that was being reviewed by the committee."

Asked to elaborate, she said, "I think that the Republicans were still reviewing some information. I am not aware of any hold-up on the Democratic side."

At that time, the press secretary for the Republicans on the committee did not have a comment on the matter.

Ted Olson, on a conference call today with reporters, defended the litigation decisions made by his team in Perry v. Schwarzenegger, the challenge to Proposition 8, in response to a question about those decisions raised today by Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.

Even if the Ninth Circuit eventually decides that there is no party with standing to bring an appeal in this case, however, another attorney for the plaintiffs said that the American Foundation for Equal Rights will bring additional litigation as is needed to advance their goal of getting a marriage equality case to the U.S. Supreme Court.

Today, though, Reinhardt took aim at the plaintiffs for creating a situation in which their first case, Perry, might not even result in an appellate decision from his court -- let alone a Supreme Court precedent for the country.

In an opinion written only for himself that mused on several ways in which he believed the standing questions that resulted in today's certification to the California Supreme Court could have been avoided, Reinhardt wrote, "[H]ad Plaintiffs sued a broader class of defendants, there clearly would have been parties who would have had standing to appeal the district court's decision, and who likely would have done so. Even had they not, it might not have been difficult for those interested in defending the proposition to find an intervenor with standing." 

He added, with a swipe at the one county that did attempt to intervene in defense of the proposition, "Imperial County, one of the counties that voted in favor of Proposition 8, sought to intervene, but for some unknown reason attempted to do so through a deputy clerk who asserted her own rights instead of through the Clerk who might have asserted hers."

As to the plaintiffs' decisions, Olson said that they named as defendants "the officials which the California Supreme Court has said are responsible [for enforcing marriage laws]" -- the governor and attorney general, who have declined to appeal the trial court ruling striking down Proposition 8 as unconstitutional -- as well as the clerks of the two counties in which the plaintiffs had their marriage license applications rejected. 

As to the naming of those clerks, Olson added, "We didn't even have to do that, and we certainly didn't have to bring a class action."

Olson, the plaintiffs' lead attorney, also told the reporters on the call that when making the decision of how to bring the Perry case his team looked at the way that other related Supreme Court cases were brought -- from the landmark Supreme Court case of Brown v. Board of Education to marriage cases like Loving v. Virginia and Turner v. Safely to the even the more recent Romer v. Evans, which related to an anti-gay statewide initiative in Colorado.

Olson explained, "If you bring an action against the state officials" who have the ultimate enforcement authority of a law -- here, he said, the governor and the attorney general -- "and a federal district court with jurisdiction enters a declaratory judgment" against those state officials, "that covers it, that's dispositive as far as the entire state is concerned."

He concluded as to the Perry trial decision issued by U.S. District Court Judge Vaughn Walker, "The district court addressed that question and rendered a judgment" against the governor and attorney general. "That, in our judgment, is dispositive." As such, he explained, the trial court ruling is sufficient to make Proposition 8 unenforceable in all of California even if there is no standing for an appeal.

Such a judgment, even if dispositive, would only impact Proposition 8 and California marriages. Theodore Boutros, another attorney for the plaintiffs, addressed that issue later in the call, saying that AFER will file additional litigation, necessarily in a different state, if the Ninth Circuit eventually decides that there is no standing for the appellate court to hear the appeal in the Perry case.

[Photos: Top, right: Judge Stephen Reinhardt. Bottom, left: Ted Olson.]

At 11 a.m. Pacific Time today, the U.S. Court of Appeals for the Ninth Circuit issued a series of orders and opinions in the Perry v. Schwarzenegger challenge to Proposition 8. None of them end the case, and none of them are likely -- at least immediately -- to raise any issue before the U.S. Supreme Court.

They did, however, send a question to the California Supreme Court through a process called certification about the standing, or ability, of Proposition 8 proponents to bring an appeal. This possibility was raised by Judge Stephen Reinhardt at the oral arguments in the case held Dec. 6. The court, in a second opinion that was heavily suggested at oral arguments, dismissed the appeal of Imperial County for lack of standing.

Reinhardt explained the issues in a separate, 10-page opinion that was written only on behalf of himself and was critical of both Supreme Court standing precedents and the lawyering by several of the parties in the Perry litigation. Of standing, he wrote, "The standing problem, under current Supreme Court doctrine, affects this case in several ways, all relating to the question of whether there is an intervenor opposed to the district court's decision that has the right to appeal it."

One of those questions is the status that California law gives to proponents such as those who supported Proposition 8 in 2008 and then intervened in the Perry case to defend their successful initiative effort. This question is not a settled matter of state law, and today's certification is an attempt to get the California Supreme Court to do so.

Many state supreme courts allow for this certification process, by which a federal court can seek an answer to a question about an unsettled matter of state law from the highest court of the state responsible for interpreting that law. In the meantime, the main case -- here, the appeal of the Aug. 4 ruling striking down Proposition 8 as unconstitutional -- is put on hold.

Here, the certified question from the Ninth Circuit to the California Supreme Court asks:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

As the three-judge panel of the Ninth Circuit that included Reinhardt that heard the appeal notes, the California Supreme Court need not answer the question, or can "reformulate the question" as it pleases.

At the oral arguments, Reinhardt told David Boies, the attorney for the plaintiffs in the case, "I don't see what we lose by [certifying the question]." Boies, at the time, said that even if California law gives proponents rights, that doesn't necessarily give Article III federal court standing because federal standing is different than state law.

Interestingly, the phrasing of the certified question does appear to have considered Boies's comment by asking specifically whether the proponents have "a particularized interest in the initiative's validity." This is a specific legal term that is one of the requirements for federal standing.

The California Supreme Court must now decide if they will decide the certified question. Under the relevant California court rules, "any party or other person or entity wanting to support or oppose the request must send a letter to the Supreme Court" within 20 days of today's certification and with a copy sent to all the parties in the Perry case. Within 10 days after that, "any party may send a reply letter to the Supreme Court," again with a copy sent to the parties in the Perry case. Then, a majority of the court must decide to accept the question in order to take the matter. At that point, under the rules, a full briefing schedule of support and opposition to the certified question would take place, with oral argument likely to follow.

Then, an answer would be sent to the Ninth Circuit, which would then take the Perry case back under advisement and decide how it wishes to proceed on the federal standing question, which -- as Boies said on Dec. 6 -- will not be explicitly answered by the California Supreme Court even if it hears the certified question.

Today's opinions:

• The Certified Question opinion: 1016696o.pdf
• The Imperial County opinion: 1016751op.pdf
• Judge Reinhardt's concurrence: 1016751opc.pdf

[UPDATE @ 6:50 PM: In explaining why they have certified the question that they have, the court explains that, under existing state court precedents, "we lack an authoritative statement of California law that would establish proponents' rights to defend the validity of their initiatives, whether because they have a particularized state-created interest in doing so or because under California law they are authorized to assert the State's interest, on behalf of the People, in defending the constitutionality of an initiative measure or appealing a judgment invalidating that measure, when the state officials charged with that responsibility refuse to do so."

Of note is the Ninth Circuit's implicit rejection of the argument made by Boies at oral argument that the governor and attorney general's actions not to defend Proposition 8 in court did not "nullify" the voters' intent because, as he said, "they are enforcing it right now."

Relatedly, the Ninth Circuit does not address any legal distinctions among what appear factually and perhaps constitutionally under California law to be three very different situations that have arisen over the course of the time since Proposition 8 has been enacted: (1) enforcement of an initiative that has been enacted, (2) defense of an initiative that has been enacted, and (3) appeal of a decision striking down an initiative.

Perhaps, though, all of that is just to say that there is a reason why the court certified the question to the California Supreme Court, which can more authoritatively delve into those questions. Although the federal court appears to believe that California places a high value on the initiative process, it just as strongly appears to be of the view that the state's highest court has not made clear the legal consequences of that and the basis for those consequences.

Finally, I would note that back in August, in questioning the wisdom of challenging standing in this case, I wrote about the intervention of right granted by Walker to the proponents and the posture of this case in comparison to other federal cases regarding initiative proponents. Although intervention does not equate to standing, it is an indication of whether Walker believed there was the very "particularized interest" protected in California law that the Ninth Circuit is asking about in the certified question to the California Supreme Court. I have reprinted the most significant portion of that post below the jump here.]

One week after President Barack Obama signed the Don't Ask, Don't Tell Repeal Act into law, the Department of Justice filed a motion in the Log Cabin Republicans' challenge to DADT to put the case on hold indefinitely to allow the president and Defense Department leadership to take steps detailed in the Repeal Act to end the ban on openly gay, lesbian and bisexual service.

The challenge in LCR v. United States resulted in a worldwide injunction of DADT for several days in October 2010, until the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay on Oct. 20, and then, on Nov. 1, a stay pending the appeal of the trial court ruling and injunction.

Although the government's opening brief in the appeal of U.S. District Court Judge Virginia Phillip's ruling is scheduled to be submitted to the Ninth Circuit by Jan. 24, the DOJ lawyers have asked for the case to be put on hold to conserve the court system's resources and out of "respect for determination by the political branches that the orderly process mandated by the Repeal Act is necessary and appropriate to ensure that military effectiveness is preserved."

LCR's executive director, Clarke Cooper, disagreed in a statement on Jan. 3, saying, "Passage of the 'Don't Ask, Don't Tell' Repeal Act of 2010 was an important step toward open service, but until open service is a reality, our legal battle remains necessary."

In the Dec. 29 filing for the government, DOJ lawyers wrote, "In granting a stay pending appeal, this Court recognized the necessity of an orderly process in the Executive and Legislative Branches regarding any repeal of § 654 [the DADT law]."

Referring to the legislative process that resulted in Obama signing the Repeal Act on Dec. 22, the lawyers continued, "Since that time [of the stay], that process has been proceeding in a timely manner in both Branches. This Court should now suspend the briefing schedule and hold the case in abeyance to allow that process to continue to completion."

The "completion" referenced would be the repeal of Sec. 654, which occurs 60 days after the president, Defense secretary and chairman of the Joint Chiefs of Staff certify to Congress that the changes needed to implement repeal are "consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces."

In the filing, DOJ lawyers made clear that DADT remains in effect until then -- as does the enhanced policy that DADT-related discharges need "the personal approval of the Secretary of the Military Department concerned, in coordination with the Under Secretary of Defense for Personnel and Readiness and the General Counsel of the Department of Defense."

Should the court grant the motion, the government lawyers state that they are "prepared to advise the Court within 90 days as to the status of the certification process."

Regardless, it is the possibility of any continued enforcement of DADT in the meantime that has caused concern for LCR and its lawyers.

Dan Woods, the lead attorney for LCR and a partner at the law firm of White and Case, said in a statement issued on Jan. 3, "I reached out to my counterparts at the Department of Justice and offered to accept a stay if the government would agree to immediately end all discharges under 'Don't Ask, Don't Tell.'  The Obama administration refused, and insists on continuing its enforcement of a policy that has been rejected by Congress, the military, and the American people."

In the DOJ filing, the government lawyers wrote the the Repeal Act enactment "has resulted in a significant change of law, effectively legislating the orderly process that this Court's stay of the injunction allows to take place."

For LCR, though, continued delay of the case while the law remains in effect means continued risk to the careers of the gay, lesbian and bisexual servicemembers who are the targets of DADT investigations. 

LCR is expected to file a motion opposing the government's request.

Read the DOJ filing: MotiontoHoldAppeal.pdf

[Photo: Adm. Mike Mullen, left, and Sec. Robert Gates, second from left, testify before Congress on Dec. 2, 2010. (Photo by Ward Morrison.)]

On the Senate's last day in session, on Dec. 22, out lesbian Chai Feldblum was confirmed by the Senate for her position as a commissioner of the Equal Employment Opportunity Commission. Another out person's nomination had stalled in the Judiciary Committee, however, and was returned to President Barack Obama, who must now decide whether or not to re-nominate Edward C. DuMont to an appellate judgeship in the 112th Congress.

Nine months earlier, on March 27, Obama had given Feldblum a recess appointment to the EEOC spot, which would not have lasted for the full term for which she was approved in December. At the time of the recess appointment, though, the White House announced that Feldblum and other EEOC nominations would remain in the Senate for confirmation by the regular procedures so that they could serve for full terms.

The EEOC is the federal agency tasked with enforcing federal non-discrimination laws in employment. Feldblum is the first out commissioner of the EEOC and had, prior to taking the recess appointment, been a professor at Georgetown University Law Center.

Because of the Senate approval, Feldblum will serve as an EEOC commissioner until July 1, 2013, rather than the end of 2011 -- which would have been when the recess appointment came to an end. In a statement, Human Rights Campaign president Joe Solmonese celebrated the Senate action.

"We commend the Senate for finally setting aside pointless partisanship and confirming this highly qualified candidate for a full term on the EEOC," he said. "Chai Feldblum has spent decades working to protect those most ignored and maligned by our society. The civil rights of all Americans will be in good hands with Chai Feldblum's continued service on the EEOC."

Among Feldblum's work has been assistance in the drafting of both the Employment Non-Discrimination Act and Americans With Disabilities Act -- a move which earned her praise from Senate Health, Education, Labor and Pensions Committee Sen. Orrin Hatch (R-Utah), who had worked with Feldblum on the ADA.

Other EEOC nominees approved by the Senate in December were Jacqueline A. Berrien, chair of the EEOC; Victoria A. Lipnic, another commissioner; and P. David Lopez, general counsel.

On the same day, however, DuMont had his nomination to the U.S. Court of Appeals for the Federal Circuit returned to the president, meaning that -- absent renomination by the president in the new Congress -- he will not take a seat on the appellate bench. His was one of nine appellate court nominations to be returned to the president.

DuMont, who Metro Weekly reported earlier would be the first out gay federal appellate judge in the country, was the earliest nominated appellate nominee -- Apr. 14, 2010 -- not to have received a hearing from the Judiciary Committee. Two appellate nominees named after DuMont did receive hearings, though neither was approved by the full Senate for their judgeships.

Erica Chabot, the press secretary for the Democrats on the Judiciary Committee, said on Jan. 3 that a hearing had not been held on DuMont's nomination because "[t]here was still some paperwork that was being reviewed by the committee."

Asked to elaborate, she said, "I think that the Republicans were still reviewing some information. I am not aware of any hold-up on the Democratic side."

Although the Democratic chairman, Sen. Patrick Leahy (D-Vt.), has unilateral authority to schedule hearings, Chabot said that the committee staffs work together generally to schedule them when both sides are prepared to move ahead.

The press secretary for the Republicans on the committee did not have a comment at this time.

[UPDATE @ 8:30 PM: White House spokesman Shin Inouye, meanwhile, did not directly answer whether DuMont would be renominated, but told Metro Weekly, "In order to re-nominate people who were not confirmed in the last Congress, White House staff and agency officials are working with the nominees to review and complete the necessary paperwork. We expect re-nominations to begin soon."]