The Department of Justice filed its response today to an inquiry from the U.S. District Court for the Northern District of California about the case of Karen Golinski, a federal court employee in California who sued so that her wife could receive spousal health benefits.

The filing notes that DOJ believes that Section 3 of the Defense of Marriage Act is unconstitutional and that Golinski's case could be impacted by that decision, and, accordingly, has included this case on a list of cases sent to Speaker John Boehner (R-Ohio) to "provide Congress a full and fair opportunity to participate in the litigation." DOJ lawyers also maintain, however, that the decision about whether it will defend Section 3 of DOMA does not resolve Golinski's case for two reasons: (1) because she is seeking to enforce an unenforceable order and (2) because DOMA remains in effect at this time.

DOJ maintains that the administrative order that Golinski is seeking to have the court enforce is unenforceable. The case, primarily, is an executive-judicial branch disagreement over whether the Employee Dispute Resolution Plan used by the U.S. Court of Appeals for the Ninth Circuit can result in an order -- such as it issued here -- that must be enforced by the Office of Personnel Management (OPM).

As the attorneys for the Justice Department wrote, "[T]he authority to administer the Federal Employees Health Benefits Program ('FEHBP') has been statutorily conferred upon OPM under the Federal Employees Health Benefits Act of 1959 ('FEHBA'); that authority encompasses all Federal employees, including those of the Judicial Branch." The chief judge in the Ninth Circuit, Alex Kozinski, disagrees and issued repeated administrative orders over the past two years as part of the EDR Plan concluding so.

Although that is the primary dispute in the case, an underlying issue addressed in Kozinski's administrative orders is whether the Defense of Marriage Act prohibits Golinski from receiving benefits for her wife under the FEHBP. OPM maintains it does; Kozinski disagrees.

OPM -- Kozinski's order notwithstanding -- refused to give Golinski the benefits and, under the EDR Plan, Golinski was permitted to file a lawsuit seeking enforcement of Kozinski's administrative order. She, with the aid of Lambda Legal, did so on Jan. 20, 2010.

When the Department of Justice announced that it and the president had concluded that Section 3 of DOMA is unconstitutional on Feb. 23, Attorney General Eric Holder also stated in the letter describing the decision that DOJ would countinue enforcing DOMA until the law is repealed by Congress or "the judicial branch renders a definitive verdict against the law's constitutionality."

The judge hearing Golinski's case, U.S. District Court Judge Jeffrey White, asked, among other questions, "How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend?"

In today's filing, DOJ attorneys answered as follows:

As noted above, while the President has determined that the Executive Branch will not defend the constitutionality of Section 3 of DOMA, he has instructed agencies to continue to comply with Section 3 "consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality." Letter at 5. As the Attorney General has stated, "[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised." Id. Moreover, through the Attorney General, the Executive Branch has notified Congress pursuant to 28 U.S.C. 530D of the President's determination that Section 3 of DOMA is unconstitutional and his decision not to defend the statute. Letter at 1. The Attorney General indicated to Congress that "[o]ur attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases," including this one. Id. at 6. See also Letter from Ronald Weich, Assistant Attorney General, U.S. Dep't of Justice, to the Hon. John A. Boehner, Speaker, U.S. House of Representatives, Feb. 25, 2011 (Attached at Tab 1).

In other words, the administration may have concluded that the law is unconstitutional but it will continue to enforce the law until the appellate process has completed itself and a final judgment is reached. Additionally, DOJ has including Golinski's case on its list of cases that have been or could be impacted by the Feb. 23 decision about Section 3 of DOMA and, accordingly, is notifying Congress of the decision so that they may choose to defend the law if they wish to do so in Golinski's case. Finally, the DOMA decision notwithstanding, the executive branch still maintains that -- at least as to the FEHBP -- the judicial branch does not have the authority to direct OPM, in the judicial branch's capacity as employer, as to how to implement benefit programs.

READ:

• The DOJ Golinski response: 96-main.pdf
• The DOJ list of cases impacted by the Feb. 23 decision that Section 3 of DOMA is unconstitutional: 96-1.pdf

In an interview with Christian Broadcasting Network's David Brody, House Speaker John Boehner (R-Ohio) sounded very much like a man planning on spearheading a defense of the Defense of Marriage Act now that the Obama adminstration -- in the case of Section 3 of DOMA -- has decided that it will no longer do so.

In the interview, Boehner said, "I'd be very surprised if the House didn't decide that they were going to defend law." He added that a decision is expected on the matter this week.

Boehner also called the president's decision not to defend Section 3 of DOMA "raw politics" and said that, because of that, "a lot of people who believe in DOMA are probably not likely to vote for him."

In an extended answer, Boehner said:

I'm really disappointed in the President and the Department of Justice in the fact that they're not going to defend a law that Congress passed overwhelmingly. It’s their responsibility to do that. Now, it’s happened before where administrations have decided they weren't going to go out and vigorously defend a law that Congress passed but I really am disappointed in the President in his actions but if the President won't lead, if the President won't defend DOMA then you'll see the House of Representatives defend our actions in passing a bill that frankly passed overwhelmingly.

There are a lot of options on the table.

We've been researching all the options that are available to us. We'll be talking to the members in the next few days about that and I expect we’ll have a decision by the end of the week.

Brody then asked, "Rick Santorum says that the Speaker of the House should appoint a counsel representing the House of Representatives to take up the case and argue DOMA in federal court. Is that a good idea?"

Boehner said, "It's an option being considered."

Immediately following the Thursday, Feb. 24 passage of a bill on Maryland's Senate floor that would grant same-sex couples in the state legal marriage recognition, opponents promised to take the issue to the ballot box.

“I don't think the votes on that board accurately represent the citizens of the state of Maryland,” Sen. Nancy Jacobs (R- Cecil and Harford) said, “I think the vote on referendum in 2012 will be the vote of the people and I think this deserves to go to the people, and I'm sure it will.”

According to Donna Duncan, director of the Election Management Division for Maryland’s State Board of Elections, opponents of the marriage bill can start collecting signatures immediately after the passage of the bill in the House of Delegates, before Gov. Martin O'Malley (D) signs the bill.

“I would imagine that they would begin that process soon, and they can start collecting the signatures on the petition with the final act of the General Assembly,” Duncan told Metro Weekly, adding, “It does not have to wait on the signature of the governor.”

A House version of the marriage bill is working its way through committee currently, with a vote expected this week.

The petition form, with the marriage bill’s language attached, would be submitted to the Maryland’s State Board of Elections for review by Maryland Attorney General Douglas F. Gansler (D).

“It’s an advance determination of sufficiency, of the language and format of the petition,” Duncan says of that review process.

“The total number of signatures necessary for statewide referendum is 55,736,” Duncan says, adding that one-third of those signatures must be submitted to John P. McDonough (D), Maryland's Secretary of State, by 11:59 p.m. on May 31.

“The remaining two-thirds, must be submitted to the Secretary of State, 11:59 p.m., on June 30, in the year in which the legislation is passed,” she adds.

“It has to happen in the year the legislation has passed, even though it wouldn’t appear until the 2012 election.”

Duncan says if the petition -- which states: “We, the undersigned voters, hereby petition to refer the bill identified below to a vote of the registered voters of Maryland for approval or rejection at the next general election” -- is successful it would be referred to the 2012 November General Election Ballot, Maryland’s next statewide election.

“Anybody could challenge the petition effort with a lawsuit," Duncan says, "which often happens.”

Sen. Jamie Raskin (D-Montgomery), co-author of the marriage bill, may be up for that challenge. After passage of the marriage bill on the Senate floor, he told Metro Weekly that if the marriage law does go to referendum, “then we'll run it like a campaign.”

“We will be the first state in America where same-sex marriage wins on the ballot.”

The Maryland State Board of Elections notes that materials, including the Statewide Referendum Petition, are currently being revised.

“There’s some debate on how a signature and information of the voter must be placed on the petition,” Duncan says. “So there were several court decisions that somewhat counter each other in how the information from the voter has to appear, and we are still awaiting further instruction from the Court of Appeals on that issue.”

As suggested this afternoon by White House Press Secretary Jay Carney, the Department of Justice has filed its brief defending "Don't Ask, Don't Tell" in Log Cabin Republicans v. United States.

It has done so, though, in a rather remarkable way: It changed the question of what the lawsuit is. Noting that "[t]he repeal process is well under way," the government argues that the appellate court should not be deciding whether DADT is constitutional but should instead be deciding whether the DADT repeal process is constitutional.

The government, in fact, doesn't even directly address the constitutionality of DADT, aside from a single mention of past cases and past briefs.

In September 2010, U.S. District Court Judge Virginia Phillips found that "Don't Ask, Don't Tell" was unconstitutional and, in October, issued an order in the LCR case that halted enforcement of the law for several days.

The Ninth Circuit soon issued a temporary stay, and later halted Phillips's order until the appellate court could review the matter itself. After Obama signed the Don't Ask, Don't Tell Repeal Act into law in December, DOJ asked the Ninth Circuit to hold off on the appeal in order to give the government time, essentially, to render the lawsuit moot by ending DADT. The Ninth Circuit refused and set today as the deadline for the DOJ to file its brief defending DADT.

The government filed its brief tonight, arguing that the novel path it has urged the court to take is correct because, following the passage of the DADT Repeal Act, "[t]his case is thus now in a different posture than when it was at the time of the entry of the injunction now under review."

As noted above, the government is presenting the Ninth Circuit with a dramatically different argument on appeal than it had presented (see "update") less than a year ago to the trial court. The questions, the government argues tonight, for the Ninth Circuit on appeal are:

1. Whether plaintiff, which asserts standing solely based on alleged injuries to an unnamed individual and to an individual provided “honorary membership” in the organization, has organizational standing to bring this lawsuit.

2. Whether Congress lacked the constitutional authority to establish an orderly process for repeal of § 654, while keeping the former statute in place and maintaining the status quo during the transition in policy.

3. Whether the district court exceeded its remedial authority in enjoining the federal government from applying a federal statute and its implementing regulations to any individual anywhere in the world.

Read Number 2 again. The government is arguing that the Ninth Circuit does not need to address whether 10 U.S.C. 654 is constitutional, but rather whether the process for repealing it is constitutional. Under the DADT Repeal Act, repeal of 10 U.S.C. 654 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." The passage of the DADT Repeal Act, though, the government argues, makes this an entirely different case.

As Log Cabin argued in response to the government's request to hold the case in abeyance for this reason, the law is still in effect until the law is repealed. "During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality," lawyers for LCR wrote in January. "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."

In the second section of the brief, the government briefly notes that courts have upheld DADT as constitutional in the past and that the government argued so earlier in this case:

Before Congress enacted the Repeal Act and established an orderly process to repeal § 654, all the courts of appeals to have addressed the matter – including this Court – had sustained the constitutionality of § 654 against both substantive due process and First Amendment challenges.  As we noted in our stay motion, “the ‘detailed legislative record’ that Congress assembled in enacting § 654 ‘makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military’s effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and thus, to ensure national security.’” Gov’t Stay Mtn. 9 (quoting Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008)). As our stay motion also noted, this Court sustained the facial constitutionality of the prior, more restrictive version of the policy in Beller, and the validity of that holding was not altered by this Court’s later decision to apply heightened scrutiny to § 654 in Witt, which involved an as-applied challenge. See Gov’t Stay Mtn. 10-11. It follows with even greater force that Congress constitutionally determined in the Repeal Act that an orderly transition in policy justified maintaining the status quo and leaving § 654 in place while the Department of Defense completes the necessary preparations for repeal.

That is it. It does not advance the argument anew on appeal, nor does the brief explicitly adopt those earlier arguments here. This is a significant change in the government's approach to the case.

Although the Feb. 23 letter sent from Attorney General Eric Holder to House Speaker John Boehner (R-Ohio) is not mentioned and the arguments used there that led to the decision to stop defending the Defense of Marriage Act appear nowhere here, the absence of any defense of the constitutionality of DADT is remarkable and appears -- without mention -- to be related or at least animated by a similar belief.

[UPDATE @ 1:45 AM: At LGBT POV, Karen Ocamb reports that Dan Woods, a partner at White & Case and the lead attorney for Log Cabin Republicans on the case, reached a similar, if not stronger, conclusion. He told her:

By not arguing merits of the constitutionality of Don't Ask, Don't Tell, the government's brief, by its silence on these issues, is effectively conceding that Don't Ask, Don't Tell was and is unconstitutional.  While it may be implicit, it is the first time in the six-plus-year history of the case that the government has not argued that Don't Ask, Don't Tell is constitutional.

Although the headline might lead one astray, the Associated Press's Lisa Leff -- in the body of her story (because she likely did not write the headline) -- also reached a similar conclusion, reporting, "The relevant question now before the 9th Circuit, [Assistant Attorney General Tony] West maintained, is not whether 'don't ask, don't tell' is unconstitutional, but whether it was unconstitutional for Congress to leave the policy in effect while the Pentagon works toward its repeal."]

[UPDATE: For expanded analysis of tonight's filing, see "DOJ Avoids DADT Constitutionality Question, Argues DADT Repeal Act Changed LCR Case."]

As suggested this afternoon by White House Press Secretary Jay Carney, the Department of Justice has filed its brief defending "Don't Ask, Don't Tell" in Log Cabin Republicans v. United States.

On Thursday, I laid out the issues with how the Feb. 23 letter from Attorney General Eric Holder regarding the heightened scrutiny given to sexual orientation classifications might impact this DADT case. In summarizing the current circumstances, I wrote:

Friday, Feb. 25, is the deadline for the Department of Justice to file its opening brief before the U.S. Court of Appeals for the Ninth Circuit in its appeal in Log Cabin Republicans v. United States. In September, U.S. District Court Judge Virginia Phillips found that "Don't Ask, Don't Tell" was unconstitutional and, in October, issued an order that halted enforcement of the law for several days.

The Ninth Circuit soon issued a temporary stay, and later halted Phillips's order until the appellate court could review the matter itself. After Obama signed the Don't Ask, Don't Tell Repeal Act into law in December, DOJ asked the Ninth Circuit to hold off on the appeal in order to give the government time, essentially, to render the lawsuit moot by ending DADT. The Ninth Circuit refused and set Friday as the deadline for the DOJ to file its brief defending DADT.

The government summarizes its argument advanced tonight in the Ninth Circuit as follows:

The government previously moved to hold this case in abeyance pending completion of the certification process established by Congress for repeal of § 654. A motions panel of this Court denied that motion. The government continues to believe that holding this case in abeyance would be appropriate, and the denial of the earlier motion is not binding on any panel that may be assigned this case for review on the merits. See, e.g., United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994). But should the Court press forward with this case, the judgment of the district court should be reversed for the reasons stated below.

As to the constitutionality of DADT, the government argues:

Before Congress enacted the Repeal Act and established an orderly process to repeal § 654, all the courts of appeals to have addressed the matter – including this Court – had sustained the constitutionality of § 654 against both substantive due process and First Amendment challenges.  As we noted in our stay motion, “the ‘detailed legislative record’ that Congress assembled in enacting § 654 ‘makes plain that Congress concluded, after considered deliberation, that the Act was necessary to preserve the military’s effectiveness as a fighting force, 10 U.S.C. § 654(a)(15), and thus, to ensure national security.’” Gov’t Stay Mtn. 9 (quoting Cook v. Gates, 528 F.3d 42, 60 (1st Cir. 2008)).

Read the brief: 9thCir-LCR-DOJBrf.pdf

[CLARIFICATION: Regarding a question raised about the headline. DOJ repeatedly makes clear in the brief that it wants the case to be held so that DADT repeal can be implemented. In that sense, they do not want the appeal to move forward. "Opposes," however, was probably not a good word to use in the headline as it suggested to some readers that DOJ was dropping its appeal of the LCR case. They have done no such thing, although, as I describe in my analysis piece, they have not exactly argued the DADT is constitutional either. It is a complex filing, and I apologize for any additional confusion that my headline created.

Accordingly, for further readers coming to this post, I have changed the headline from "DOJ Opposes Continued Appeal of LCR DADT Case, Notes That Courts Have Found DADT To Be Constitutional" to the current, "DOJ Urges Continued Delay of LCR DADT Appeal, But Notes That Courts Have Found DADT To Be Constitutional."]

Notwithstanding the government's decision to stop defending Section 3 of the Defense of Marriage Act against constitutional challenges, White House press secretary Jay Carney suggested today that the Department of Justice will continue defending "Don't Ask, Don't Tell" in court.

Although President Obama signed the Don't Ask, Don't Tell Repeal Act into law on Dec. 22, 2010, the implementation of the repeal will not be complete until a 60-day congressional review period passes after the president, secretary of defense and chairman of the Joint Chiefs of Staff certify that DADT repeal will not negatively impact military readiness and other concerns. Because of this, the Log Cabin Republicans and other groups are still maintaining various challenges to DADT.

Facing a deadline of today for the government to file its appellate brief before the U.S. Court of Appeals for the Ninth Circuit in Log Cabin Republicans v. United States, Carney said that the administration has asked the court to hold off on considering the appeal so that the administration can implement the DADT Repeal Act and end the law.

Carney was asked by Metro Weekly today if the Feb. 23 legal determination that resulted in the decision to stop defending DOMA – that laws that classify people by sexual orientation deserve heightened scrutiny – will similarly put an end to the government's defense of DADT.

The letter that Attorney General Eric Holder sent on Feb. 23 to House Speaker John Boehner (R-Ohio) announcing that the administration would no long be defending Section 3 of DOMA in court was made in reference to two cases brought in the U.S. Court of Appeals for the Second Circuit. According to the letter, however, Holder wrote specifically that "pursuant to the President's instructions" the decision was to apply to other cases challenging Section 3 of DOMA.

Metro Weekly asked Carney whether -- in light of the heightened scrutiny the administration now applies to sexual orientation classifications -- Obama gave the Justice Department any similar "instructions" regarding his view of the constitutionality of DADT.

Carney initially only referenced the Justice Department's filing deadline in the LCR case and suggested that the DOJ would be submitting its filing, but did not answer whether the president had taken any action or given any instructions regarding the LCR case.

Pressed further as to whether Obama had made any similar determination that DADT was unconstitutional in light of the Feb. 23 announcement regarding DOMA, Carney said, "Not that I know of, no."

[UPDATE @ 5:45 PM: Told of the White House response, Log Cabin Republicans executive director Clarke Cooper wrote to Metro Weekly, "Good grief."

More substantatively, however, Cooper pointed out, "My colleagues in the Army are confused by the Obama administration decision to defend DADT court. It is especially frustrating to witness the defense of DADT at a time when commanders are being trained up by [Department of Defense] on open service and open recruitment."

Metro Weekly will have further comment from LCR if and when DOJ files its brief.]

[LATE UPDATE: DOJ filed its brief this evening. For more, read: "DOJ Avoids DADT Constitutionality Question, Argues DADT Repeal Act Changed LCR Case"]

[UPDATE @ 6:15 PM: The official White House transcript:

     MR. CARNEY: Yes, I’m sorry -- with the glasses, sir.

     Q    Hi.  Thank you, Jay.  The President’s determination earlier in the week that sex orientation classifications lead to heightened scrutiny led him to determine that section three of DOMA was unconstitutional.  In that letter that the attorney general sent to Speaker Boehner, he said that pursuant to the President’s instructions, this would be applied in other cases, which yesterday was applied to two cases in the Second Circuit.  My question is, did the President give any instructions to the Justice Department regarding his view of the constitutionality of the status of “don’t ask, don’t tell,” the appeal of which, in Log Cabin versus -- Log Cabin Republicans is due today?

     MR. CARNEY:  As you mentioned, the appeal is due today.  I don’t have -- we don’t have -- we have to wait for that final brief.

     Q    But did the President give any instructions?

     MR. CARNEY:  Not that I’m aware of.  As you know, we are very supportive of and glad that Congress repealed “don’t ask, don’t tell” and we are monitoring and glad that the process is proceeding smoothly and efficiently, the process of repeal.  But on the brief and the President’s instructions, I don’t have anything for you.

     Q    But what you had said regarding the DOMA briefs was that the President -- that the deadline had forced the administration’s hand.  Did the -- has the administration in any way reacted to today’s deadline?

     MR. CARNEY:  Well, I think, as you’ve said, the Department of Justice is going to file a final brief.  And we will see what that says.  But we expect the brief to say the following:  reiterate -- number one, reiterating that the courts should not decide the case or the constitutional question, due to the pending repeal, which should be effective in a matter of months.  As I said, the repeal is proceeding smoothly and efficiently.  Our goal was to have it repealed.  It has been repealed.  And that process of the repeal is now proceeding efficiently and smoothly, which is a good thing.

     Q    So the President has not said that he believes that --

     MR. CARNEY:  Again, I think I said --

     Q    -- “don’t ask, don’t tell” is unconstitutional?

     MR. CARNEY:  Not that I know of.  No.

So, there's that.]

The fallout has been rapid and expansive from the Feb. 23 letter from Attorney General Eric Holder to House Speaker John Boehner regarding the government's decision to stop defending Section 3 of the Defense of Marriage Act. Section 3 sets the federal definition of "marriage" and "spouse" as referring only to opposite-sex married couples.

In a move that was discussed in the Feb. 23 letter, the Department of Justice filed a letter on Feb. 24 in the U.S. Court of Appeals for the First Circuit announcing that it "will cease its defense" of Section 3 of the Defense of Marriage Act in the two cases on appeal before the appellate court, Gill v. Office of Personnel Management (which is referred to on appeal as Hara v. Office of Personnel Management -- Peter Hara is another plaintiff in the case) and Massachusetts v. United States.

In a release about the letter filed in the First Circuit, Mary L. Bonauto, GLAD's Civil Rights Project Director and lead attorney in Gill, said, "It is increasingly clear to everyone what has been clear to gay and lesbian families for years - that DOMA's denial of protections available to all other married families is discriminatory, harmful, and unjustifiable. DOJ's acknowledgement of this is momentous. At the same time, we know this isn't the end of the road."

The third DOMA Sec. 3 challenge, Golinski v. Office of Personnel Management, is pending before the U.S. District Court for the Northern District of California. According to a news release from Lambda Legal, which represents Karen Golinski, the judge in that case has asked the government to "explain how the government plans to pursue its defense of the case following [the Feb. 23] announcement that President Obama and Attorney General Holder have concluded that DOMA is unconstitutional and inappropriate to defend."

U.S. District Judge Jeffrey White wrote:

Based on the Executive Branch's determination that the legislation is affirmatively unconstitutional, the Court requires responses to the following questions: (1) does the Office of Personnel Management ("OPM") intend to reassess its position on its original instruction to Plaintiff's insurer to decline to extend benefits to her same-sex spouse? (2) How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend? (3) Should the Court remand this matter to the Ninth Circuit’s administrative process for proper adjudication of Plaintiff's access to benefits for her wife? (4) On what basis can OPM defend its position to decline to extend benefits in a case in which such declination was based on the defense of unconstitutional legislation?

The Court requires a written response to this Order indicating the parties' positions in response to the Statement and its potential effect on the outcome of this matter. A response shall be filed by Defendants by no later than February 28, 2011. Plaintiff may respond thereafter, by no later than March 7, 2011.

Additionally, attorney Lavi Soloway announced that he will be filing requests in New York, New Jersey and California on behalf of three married, same-sex binational couples -- two gay male couples and one lesbian couples -- where one spouse is facing deportation. According to Soloway, "Each will brandish a pending green card petition filed by the American spouse on behalf of the foreign spouse." Soloway writes that he "will argue that deportation proceedings should be halted because the only thing standing between each couple and a green card is [Section 3 of] the Defense Of Marriage Act, which the President and the Attorney General announced this week will no longer be defended in court."

Finally, as discussed earlier, the Department of Justice faces a deadline to file its brief today in its appeal of Log Cabin Republicans v. United States, the gay Republicans group's challenge to "Don't Ask, Don't Tell."

Read the First Circuit letter: doj-letter-re-ma-doma-cases-02-2011.pdf

After about an hour of discussions from opposing views, Maryland’s State Senate voted 25-21 in favor of Senate Bill 116, The Civil Marriage Protection Act on Thursday, Feb. 24.

A House version of the bill is expected to be introduced in House committee tomorrow.

If signed into law, the bill would grant same-sex couples legal marriage rights in the state of Maryland, while also protecting the rights of religious institutions to handle issues of marriage however they see fit.

The marriage bill was written by Sen. Rich Madaleno (D-Montgomery), the only out gay member of Maryland's Senate, and Sen. Jamie Raskin (D-Montgomery).

Maryland State Senate President Thomas V. Mike Miller, Jr. allowed Senators to talk before declaring a vote at 6 p.m., with debates from each side limited to 30 minutes after the vote.

Reacting to passage of the bill, Equality Maryland promptly issued a release praising those who co-sponsored the bill, including Senator Rob Garagiola (D-15).

“This is a historic and proud moment in Maryland's history,” Garagiola, lead sponsor of the bill said on its passage.

“The advocates for this legislation have worked tirelessly to this point and will continue to push through the final stages of this movement. I am honored to be a part of this effort and am confident that the Free State will realize full marriage equality in 2011.”

Full coverage of the vote, and introduction of bill in House committee, to follow on Poliglot. 

On Wednesday, Feb. 23, Attorney General Eric Holder declared in a letter to House Speaker John Boehner (R-Ohio) that "the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny."

This is an important determination reached by the president and the Department of Justice that is preliminary to and independent of the decision (that got more coverage) that Section 3 of the Defense of Marriage Act is unconstitutional. As such, it is quickly going to raise questions in other areas of the law.

The "heightened scrutiny" determination is one relating to the test used by courts when evaluating claims that a law or government practice violates the equal protection rights of a group or individual. Under the most basic level of scrutiny -- rational basis -- the government need only show that the law provides a "reasonable" way of seeking a "legitimate" government aim.

Contrast this to a "suspect class," which receives "strict scrutiny." In such a case -- involving race or religion, for example -- the law is presumed to be unconstitutional and the government must prove that the law is "narrowly tailored" and the "least restrictive" way to advance a "compelling" governmental interest.

In between is heightened, or intermediate, scrutiny. Under this scrutiny, laws in question must be "substantially related" to "important" governmental interests.

Before Wednesday's decision, the government had previously defended laws that classified people based on sexual orientation by arguing that the laws met the rational basis test. Because laws under this standard are presumptively constitutional, the government's argument could be as relatively simple and often relied on things like "fiscal" prioirities, which are -- of course -- legitimate government objectives. Under heightened scrutiny, however, such an argument would be unlikely to pass muster and, in order to defend the law, the government would need to argue that some "important" governmental aim is substantially advanced by excluding or otherwise classifying gay people.

Which brings us to the next test.

Friday, Feb. 25, is the deadline for the Department of Justice to file its opening brief before the U.S. Court of Appeals for the Ninth Circuit in its appeal in Log Cabin Republicans v. United States. In September, U.S. District Court Judge Virginia Phillips found that "Don't Ask, Don't Tell" was unconstitutional and, in October, issued an order that halted enforcement of the law for several days.

The Ninth Circuit soon issued a temporary stay, and later halted Phillips's order until the appellate court could review the matter itself. After Obama signed the Don't Ask, Don't Tell Repeal Act into law in December, DOJ asked the Ninth Circuit to hold off on the appeal in order to give the government time, essentially, to render the lawsuit moot by ending DADT. The Ninth Circuit refused and set Friday as the deadline for the DOJ to file its brief defending DADT.

Which brings us to heightened scrutiny.

The Justice Department -- and Obama -- reached the conclusion that sexual orientation classifications should receive heightened scrutiny. DADT -- even more directly than DOMA -- classifies based on sexual orientation. 10 U.S.C. 654 is titled, "Policy concerning homosexuality in the armed forces."

That, of course, is a classification based on sexual orientation. Even DOMA doesn't specifically address homosexuality -- although its limitation of marriage recognition clearly and unavoidably impacts same-sex couples, and hence, homosexuals and bisexuals seeking to have a same-sex marriage recognized.

Even if the government wishes to argue that DADT should be distinguished from DOMA on the grounds that it is a military policy that requires additional executive deference, that is a step beyond the initial question of whether heightened scrutiny applies to the classification at issue in the LCR challenge.

Neither the White House nor the Department of Justice have responded to multiple requests to explain whether and, assuming so, how Wednesday's "heightened scrutiny" determination impacts the LCR filing.

A White House official told Metro Weekly only, "Congress has now enacted an orderly process for repeal of DADT, and repeal is expected to become final later this year. Quite apart from this decision, the Administration has encouraged the courts to withhold further proceedings in DADT litigation until the Executive Branch's certification process is complete."

As noted, the government did "encourage" that, but the Ninth Circuit rejected that request.

The White House official added -- in response to a question not asked -- "In the meantime, the Government will continue to enforce DOMA – and this provision of the [DADT] repeal law that invokes DOMA – unless and until Congress repeals the law or the Supreme Court strikes it down."

That non-answer prompted a follow-up question asking, "A filing deadline is set for the government on Friday. Does the president believe that 'heightened scrutiny' applies in the LCR v. U.S. case?"

Metro Weekly was told that the question was better directed to the Department of Justice, despite the fact that Holder's Feb. 23 letter made clear that it was "the President's instructions" that already has led DOJ to apply the DOMA determination to cases other than the two directly at issue in the letter.

DOJ is yet to respond to a follow-up request that references the White House's direction.

Although apparently unwilling to respond now, the Feb. 25 deadline will force a response soon.

ALSO READ: "Will the Justice Department Drop Its Defense of Don’t Ask, Don’t Tell?" [LGBT POV]

[UPDATE @ 9:15 PM: In response to a question about how the Witt v. United States Ninth Circuit ruling -- which found that heightened scrutiny should apply in former Major Margaret Witt's lawsuit seeking to be reinstated to the Air Force -- applies here in LCR's case, the government argued prior to the trial -- specifically, in an April 2010 filing -- that the heightened scrutiny applied by the Ninth Circuit in Witt did not apply to the LCR case. Why? Because Witt was an "as-applied" challenge, which applied only to Major Margaret Witt. LCR, on the other hand, is a facial challenge, which meant that LCR was (and is) seeking a ruling that DADT is unconstitutional in all cases.

In an order issued in July 2010, Phillips rejected that contention, finding that Witt's heightened scrutiny did apply to the case. Before Holder's letter, however, there was no reason to believe that DOJ would accept that or any other portion of Phillips's ruling on appeal.

On pages 13-14 of the government's Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment, filed April 26, 2010, DOJ argued:

Plaintiff’s burden is particularly high here, because the Court has ruled already that LCR may not “rely upon [the] heightened scrutiny standard [adopted in Witt] as the Ninth Circuit limited this standard to as-applied challenges,” and that this challenge is thus governed instead by the most deferential form of review available – the rational basis test (Doc. 83 at 17). Under that standard, the only question presented is whether Congress “rationally could have believed” that the conditions of the statute would promote its objective. Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 671-72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981) (emphasis in original).

The Supreme Court has held that the rational basis test “is not subject to courtroom fact-finding,” and rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Fed. Commuc’ns Comm’n v. Beach Commc’ns, 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993). The Government, therefore, has “no obligation to produce evidence to sustain the rationality of a statutory classification.” Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993). Rather, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U.S. 93, 111, 99 S. Ct. 939, 59 L. Ed. 171 (1979). “Only by faithful adherence to this guiding principle of judicial review,” the Supreme Court has cautioned, “is it possible to preserve to the legislative branch its rightful independence and its ability to function.” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365, 93 S. Ct 1001, 35 L. Ed. 2d 351 (1973).

With respect to DADT, the Ninth Circuit already has found that Congress rationally could have believed the conditions of the statute would promote its objectives, see Philips, 106 F.3d at 1429, and that determination is binding Circuit precedent. Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994). Because LCR cannot meet its burden, Defendants are now entitled to summary judgment under Federal Rule of Civil Procedure 56.

That entire argument is irrelevant and no longer applies if Holder's conclusion on Feb. 23 that "classifications based on sexual orientation warrant heightened scrutiny" is the new standard that DOJ believes should apply to the LCR case. Because the rational basis argument was applied by the government at trial, however, DOJ only had to argue in the brief that "[u]nder settled case law governing rational review generally and governing review of DADT policy in particular, the bases Congress set forth in the statute are sufficient to survive rational basis review." (And, even there, it lost.)

This argument would be wholly insufficient under the standard that Holder announced on Feb. 23.]

[Photo: Vice President Biden and President Obama at the DADT Repeal Act signing on Dec. 22, 2010. (Photo by Ward Morrison.)]

Equality Maryland spent the first half of Wednesday, Feb. 23 celebrating the second reading Senate passage of a bill that would grant same-sex couples marriage rights in the state if signed into law.

But the day closed somberly at Equality Maryland’s headquarters in Baltimore with a vigil for Tyra Trent. 

Police are investigating the death of Trent, a 25-year-old transgender sex worker, who was found asphyxiated in her Baltimore apartment on Saturday, according to the Baltimore Sun.    

Maryland transgender activist Dana Beyer was en route to the vigil when speaking to Metro Weekly about the murder.

"It's not surprising news," Beyer said. "There's still problems even in jurisdictions that have full civil rights protections, there's still bigotry, there's still hatred, and people do this."

"On Transgender Day of Remembrance, we recall those who have died that year, and in the previous year, and every year we know of 30-40 people who died. This is one more from Baltimore, it's terrible, but it’s the kind of norm that we've gotten accustomed to, and the legislatures don't view this with any kind of urgency," Beyer said.

Beyer added that the reason activists push bills like House Bill 235, the Sexual Orientation and Gender Identity Antidiscrimination bill, is to "try to change the culture."

The bill's language states that if passed it would prohibit discrimination based on gender identity with regard to housing, employment, commercial leasing and more.

According to Equality Maryland, there is currently no Maryland state law, or federal law, that provides protections for transgender people in Maryland.

In a news release issued in late January following the bill's first reading in the Maryland House Health and Government Operations Committee, Equality Maryland executive director Morgan Meneses-Sheets said passage of the bill is crucial.

"Discrimination against the transgender community is rampant in Maryland," she said. "Data shows that one in five transgender people in Maryland have lost a job because they are transgender, and 12 percent have become homeless. This law is a matter of life-or-death for many Marylanders."

On Feb. 23, Maryland House Health and Government Operations Committee set a hearing date of 1 p.m. March 9 for H.B. 235.

Moments after the U.S. Department of Justice announced that it would no longer be defending challenges to Section 3 of the Defense of Marriage Act, Ted Olson announced that the legal team in the Perry v. Schwarzenegger challenge to Proposition 8 was asking the U.S. Court of Appeals for the Ninth Circuit to lift the stay of the trial court ruling striking down Proposition 8 -- a move that would allow same-sex marriages to begin in California immediately. Olson is the lead attorney for the Perry plaintiffs, who argue that California's 2008 marriage amendment is unconstitional.

The reason for the request given by the Perry legal team is that three "materially changed circumstances" justify the court reversing, or vacating, its earlier stay of U.S. District Court Judge Vaugn Walker's order prohibiting enforcement of Proposition 8.

Two of the three changes -- the Ninth Circuit's certification request and the California Supreme Court's decision to accept that order -- are a part of the case itself. The Ninth Circuit, in resolving whether the proponents of Proposition 8 have standing to appeal the loss at trial, has asked the California Supreme Court to assess whether, under state law, the proponents of an initiative have legal rights to defend initiatives -- a request the California Supreme Court accepting and will be considering in coming months (although the Olson team, in a separate filing, asked that court to expedite that consideration).

Although these two actions, arguably, present changed circumstances, they are changes of which the court could have conceived, at least, when they sent the certified question to the California Supreme Court on January 4.

The request to lift the stay of the trial court order that was put to the Ninth Circuit today by the Perry legal team notes, however, "This Court's January 4 order and the California Supreme Court's response make clear that the stay can no longer be justified and the 'additional delay' it imposes will not be fleeting. Given these changed circumstances, the stay pending appeal should be vacated."

In other words, while marriage equality is not reality in California as the Perry case makes its way through the appellate courts, Olson and the Perry legal team argue -- as they did previously -- that it should be.

The third changed circumstance is outside of the case and, technically, irrelevant to it, yet Olson argues should have a major impact on it. As Olson and the lawyers wrote, the third changed circumstance is that "the Attorney General of the United States announced the view of the United States that 'classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of [DOMA]—which defines 'marriage' under federal law to be 'a legal union between one man and one woman'—'is unconstitutional.'"

In other words, Olson argues that today's decision by DOJ -- though relating only to challenges to a federal law -- is so significant that the Ninth Circuit should reconsider its decision to keep Proposition 8 in effect while the appeal of the challenge is being heard.

Later in the filing, the lawyers write:

The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious at- tempt to defend Proposition 8 under that exacting standard.

This filing, announced within an hour of the DOJ announcement, is but the first of a likely countless number of circumstances in which lawyers can now wrap their arguments for striking down various sexual orientation-based laws in the protective cloak of a supportive Justice Department.

Read the filing: 10-16696_motion.pdf

[Photo: Olson]

Senate Bill 116, The Religious Freedom and Civil Marriage Protection Act, passed a second reading in the Maryland State Senate on Wednesday, Feb. 23 with amendments made to the bill. 

The Senate began discussion of amendments to the bill at 10 a.m., and concluded shortly before 12:30 when Senate President Thomas V. Mike Miller, Jr. declared that the amendments had gone too far and he wanted to avoid getting trapped in a “slippery slope.”

With that, the Senate voted the bill favorable with amendments 25-22, which means that the bill will receive its third and final reading tomorrow, Thursday, Feb. 24.

The amendments that were adopted to Senate Bill 116 included one introduced by Sen. C Anthony Muse (D-Prince George’s County) to take out “Religious Freedom and” from the title of the bill.

“There is nothing that would apply to all to say that this bill is about religious freedom,” Muse said, “it is not.” 

“Our entire discussion has been about same-sex marriage in Maryland, and that’s really what it is.”

Another amendment to further change the name of the bill to swap “Civil Unions” with “Same-Sex Marriage,” was rejected.

Other adopted amendments include one by Sen. Jamie Raskin (D-Montgomery County), co-author of the marriage bill, clarifying gender language in the bill by stating that one cannot marry certain individuals including siblings. 

There were many amendments that were rejected, and withdrawn, including one from Sen. E.J. Pipkin (R-Caroline, Cecil, Kent & Queen Anne's Counties) asking that goods, services, employee benefits and housing be denied to same-sex couples. Pipkin withdrew that amendment after discussions.

One rejected amendment, described by Raskin as the “most radical” amendment to the bill, was one introduced by Sen. Nancy Jacobs (R-Cecil & Harford Counties), who has said she will vote against the bill, to “protect” public figures from same-sex marriage.

Jacobs said for example, if the bill were to pass, a court clerk should not have to take part in the giving of a marriage license to a same-sex couple if it conflicts with his religious faith because the oath that he took to serve as a public figure occurred before passage of Senate Bill 116.

The Senate voted against that measure. 

A final bill reading on SB-116 is slated for Thursday, Feb. 24.

To read each amendment and for more information about Senate Bill 116, visit http://mlis.state.md.us/2011rs/billfile/SB0116.htm.

[UPDATE: Read my expanded article, "DOJ Stops Defending DOMA Provision."]

The Department of Justice has made a decision that heightened scrutiny applies to sexual orientation classifications such as that involved in the Defense of Marriage Act. In a letter sent to Speaker John Boehner, Attorney General Eric Holder writes that, because of this decision, the Department will no longer defend Section 3 of DOMA, which defines "marriage" and "spouse" as referring only to opposite-sex marriages.

The letter is required by 28 U.S.C. 530(D), which states that such a letter is required when DOJ decides not to defend a federal law.

In a statement released today, Holder says of the decision:

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.  In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.  I fully concur with the President’s determination.

The National Journal first reported the news moments ago on Twitter.

Read the letter: LETTER_-_BOEHNER.pdf

Read Holder's full statement below the jump.

Rahm Emanuel, the former head of the Democratic Congressional Campaign Committee who served as President Barack Obama's first White House chief of staff, was elected mayor of Chicago following today's vote, according to the Associated Press.

Roll Call reports:

With 86 percent of the precincts counted, the AP called the race for Emanuel with 55 percent of the vote, the Chicago Sun-Times reported. Because he received more than 50 percent, he will be declared the winner outright and won’t have to compete in an April runoff.

Emanuel's victory is not likely met with enthusiasm from all LGBT corners tonight. He faced criticism -- harsh at times -- regarding his approach and willingness (or perceived lack thereof) to pursue LGBT advancements while serving as Obama's chief of staff.

AmericaBlog's Joe Sudbay wrote in September 2010 of Emanuel's possible candidacy, "Chief of Staff Rahm has been one of the leading political homophobes in the White House. He still thinks it's 1993." Other prominent bloggers -- from Pam Spaulding to Andy Towle -- took a similar view of Emanuel throughout his tenure as chief of staff.

Despite their opposition, both the Human Rights Campaign and Equality Illinois PAC endorsed Emanuel's candidacy (albeit in the waning days of the campaign).

The Washington Post's The Fix blog details the other candidates, with Chris Cillizza and Aaron Blake writing:

Former Chicago board of education president Gery Chico was running in second with City Clerk Miguel del Valle and former Sen. Carol Moseley Braun battling for third and fourth but mired in single digits.

Emanuel becomes the city's first new mayor of the Windy City since 1989, when current Mayor Richard M. Daley was first elected. Daley is retiring.

[UPDATE @ 10:37 PM: Obama, in a brief statement issued by the White House, says:

I want to extend my congratulations to Rahm Emanuel on a well-deserved victory tonight.  As a Chicagoan and a friend, I couldn't be prouder. Rahm will be a terrific mayor for all the people of Chicago.

So, there's that.]

[Photo: Emanuel (Photo from Twitter.)]

Following quickly on the heels of today's historic committee vote sending Maryland's marriage equality bill to the floor of the full Senate, the final necessary vote for passage in the Senate declared his support for the Religious Freedom and Civil Marriage Protection Act.

Sen. James Carew Rosapepe (D-Prince George's, Anne Arundel) is the 24th member of the 46-member body to declare his support, telling his constituents in an e-mail that he intends to vote for the bill as it was approved by the committee today, according to the Baltimore Sun.

From Rosapepe's e-mail:

I intend to vote for the bill as it was reported out of Committee with a strengthened conscience clause to respect the views of religious denominations which do not recognize same sex marriage. I don’t know what other amendments may be proposed on the Senate floor but will keep your concerns in mind as we consider them.

Sen. Jamie Raskin (D-Montgomery) told Metro Weekly earlier today that he expects the bill to be considered by the full Senate next week.

As of now, Sen. John Astle (D-Anne Arundel) is the only senator to remain undecided. Sen. Joan Carter Conway (D-Baltimore City) is also undeclared, but according to Equality Maryland, Conway has told her constituents that if Senate Bill 116 receives 23 votes, she would cast a vote in favor it.

[Photo: Rosapepe (Photo courtesy Maryland Senate website.)]

Today, President Barack Obama had a meeting to discuss the reauthorization of the Elementary and Secondary Education Act with a bipartisan group of Senate leaders on the topic. Although the White House reports that the meeting with the leaders was "productive," there was no discussion of either of the bills introduced in the 111th Congress that were aimed at reducing anti-LGBT bullying.

The Student Non-Discrimination Act (SNDA) and Safe Schools Improvement Act (SSIA) never received the specific endorsement of the administration in the 111th Congress, although White House and Education Department officials repeatedly expressed support for the aims of the bills. 

The SNDA, modeled after Title IX, would have added sexual orientation and gender identity federal education nondiscrimination law. The SSIA, meanwhile, would have amended the Safe and Drug-Free Schools and Communities Act to include bullying and harassment prevention programs, including ones based on sexual orientation or gender identity.

The White House reports only that "the President discussed his desire to find common ground on the need to re-define the federal role in education, so that it is more flexible and better focused on responsibility, reform, and results."

The meeting -- held with Sens. Tom Harkin (D-Iowa), Mike Enzi (R-Wyo.), Jeff Bingaman (D-N.M.), and Lamar Alexander (R-Tenn.) -- was supposed to have been held with both Senate and House leaders, but a House vote led the House members to return to the Hill and miss the meeting.

Although the issue of anti-LGBT bullying and the two bills aimed at addressing it did not come up during the meeting, White House spokesman Shin Inouye responded to a question from Metro Weekly in an email, writing, "The President continues to believe that all students, regardless of sexual orientation or gender identity, should be able to learn in a safe and secure environment."

Inouye did not respond to a portion of the question asking whether inclusion of the SSIA or SNDA's aims in the ESEA reauthorization was a priority for the White House.

In October 2010, however, Inouye told Metro Weekly, "Next year when the Elementary and Secondary Education Act is being considered, we look forward to working with Congress to ensure that all students are safe and healthy and can learn in environments free from discrimination, harassment, and intimidation; that students have access to adults who engage them and care about their success, and to supports that promote their learning and well-being."

[Photo: President Obama answers reporters questions about his budget proposal on Feb. 15. (Photo by Chris Geidner.)]

In new U.S. diplomatic cables provided by WikiLeaks, The Guardian today published cables detailing the United States diplomacy relating to Uganda's Anti-Homosexuality Bill. [UPDATE: As reported as Box Turtle Bulletin, the cables initially were published a week ago in El Pais.]

The cables show an acute awareness of the sensitivity of the issue and the danger of the anti-gay legislation. They also provided references detailing the State Department's knowledge of recently killed Ugandan LGBT activist David Kato's concern for his safety and freedom when addressing his opposition to the bill.

Under the heading "Homophobic Demagogues," the diplomat in one cable dated Dec. 24, 2009, writes:

Recent condemnations by [U.S. Pastor Rick] Warren and other U.S. based individuals have further isolated [the sponsor of the Anti-Homosexuality Bill, MP David] Bahati. His homophobia, however, is blinding and incurable. Bahati, Buturo, and particularly Ssempa's ability to channel popular anger over Uganda's socio-political failings into violent hatred of a previously unpopular but tolerated minority is chilling. ... Helping those attempting to counter Bahati, [Uganda Ethics and Integrity Minister James] Buturo, and [Pastor Martin] Ssempa to better craft their arguments - perhaps through a digital video conference or some other venue - is worth pursuing.

Earlier in the same cable, Kato's efforts opposing the bill are discussed:

On December 18, the Uganda Human Rights Commission (UHRC) organized - with support from the UN Office of the High Commissioner on Human Rights - what turned out to be a one-sided debate on the anti-homosexuality bill.

Bahati's remarks mirrored his private statements to PolOffs. Bahati also attacked the White House statement opposing the bill, saying that he admires President Obama, that President Obama ran on a platform of change, and that Uganda's message to him is that "homosexuality is not a change but rather an evil that we must fight." At this point the room erupted in loud applause ....

Kato delivered a well-written speech defending the rights of gay and lesbians in Uganda. However, his words were nearly indecipherable due to his evident nervousness. ... XXXXXXXXXXXX representatives left shortly after Kato's speech, fearing that Bahati had instructed the Inspector General of Police to arrest Kato.

In another cable, dated Feb. 16, 2010, the diplomat provides a comment on "Fighting State Sponsored Homophobia," writing:

Even if draft bill is shelved in the weeks ahead, rampant homophobia in Uganda won't go away. Local efforts to deconstruct Uganda's anti-homosexuality movement go well beyond public condemnation of the anti-homosexuality bill by directly challenging Uganda's pervasive homophobia. These efforts are worthy of additional and sustained support.

For more information, read Jim Burroway's post at Box Turtle Bulletin, as well as this follow-up post relating to the XXX publication.

[Photo: Uganda MP David Bahati]

The California Supreme Court granted the request to take the certified question, as requested by the U.S. Court of Appeals for the Ninth Circuit, in the Perry v. Schwarzenegger challenge to Proposition 8 -- putting off same-sex marriages in California for at least an additional eight months.

What does this mean?

Under the U.S. Constitution, there must be an actual "case or controversy" presented to a federal court in order for it to hear a case. This often plays out in federal courts in a debate over standing. In the Perry challenge to Proposition 8, none of the parties who enforce Proposition 8 -- state officials, including the governor and attorney general -- chose to appeal the Aug. 4, 2010, trial court ruling that struck down Proposition 8 as unconstitutional. The proponents of Proposition 8 have attempted to appeal the ruling to the Ninth Circuit, but the Ninth Circuit cannot hear the appeal if no party with standing to appeal the ruling does so.

The question, then, is whether the proponents have standing.

California's high court will be deciding the request of the Ninth Circuit to answer:

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.

If the California Supreme Court finds the proponents to have a "particularized interest" or "the authority to assert the State's interest," the Ninth Circuit could then find the proponents to have standing. At that point, the appeal of the Perry trial court decision could go forward.

The briefing schedule before the California high court is set as follows:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011.  The answer brief on the merits is to be served and filed on or before Monday, April 4.  A reply brief may be served and filed on or before Monday, April 18.

The California court said it aims to hold oral arguments on the issue "as early as September, 2011."

As such, the Ninth Circuit will not be getting the case back, at least, until October -- but likely later. Additionally, because the Ninth Circuit granted a stay of the trial court's order in Perry pending the outcome of the Ninth Circuit appeal, there will be no same-sex marriages during this time.

The full order can be found below the jump.

The Los Angeles Times reports:

The California Supreme Court will decide Wednesday whether to plunge back into the legal battle over same-sex marriage.

The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8's sponsors have legal authority to defend the ballot measure.

Metro Weekly reported earlier that California Supreme Court Chief Justice Tani Cantil-Sakauye had said that decision could come at any time now.

Metro Weekly will be following any developments closely.

[UPDATE @ 1:55 PM: Some "unpublished" opinions from today have been posted on California Supreme Court website. There is nothing, yet, on the question of whether the court will accept the certified question from the Ninth Circuit relating to standing in the Proposition 8 Perry v. Schwarzenegger case. The court has not yet published any list of new cases accepted, which could still come later today and include the decision on the certified question.]

[Photo: President Barack Obama takes questions from members of the media the day after unveiling his third budget proposal. (Photo by Chris Geidner.)]

With a focus on the White House budget unveiled on Feb. 14 and the protests for freedom in Egypt and across the Middle East, President Barack Obama held a news conference in the South Court Auditorium of the Eisenhower Executive Office Building today. Spending an hour answering questions, Obama was asked no questions about any LGBT-specific issues.

He did, however, reference LGBT-specific issues once, pointing to "Don't Ask, Don't Tell" repeal as an example of something that his administration accomplished despite calls for quicker action from outside the White House.

In response to a question from NBC's Chuck Todd in which Todd said that the findings of the fiscal commission have been "shelved," Obama said, "I've had this conversation for that last two years about every single issue that we worked on, whether it was health care or 'don't ask, don't tell.' On Egypt, right? We've had this monumental change over the last three weeks -- well, why did it take three weeks?

"So I think that there's a tendency for us to assume that if it didn't happen today it's not going to happen."

The inclusion of DADT repeal in Obama's list rankled one of Obama's harshest LGBT critics on the left, AmericaBlog's John Aravosis, who wrote, "Repeal didn't take a long time because that was part of the plan. The legislation passed because we got lucky."

Earlier in the morning, White House domestic policy advisor Melody Barnes, the director of the Domestic Policy Council, held a conference call with members of the LGBT media, focusing on budgetary issues impacting LGBT people and HIV/AIDS concerns.

Among other issues, Barnes noted a request in the White House budget proposal for a five percent increase in the budget of the Equal Employment Opportunity Commission. Meanwhile, the director of the Office of National AIDS Policy, Jeffrey Crowley, also was on the call and pointed to, among other priorities reflected in the budget, an $80 million increase for the AIDS Drug Assistance Program (ADAP).

* * *

As I did following an earlier presidential news conference, here's the question I would have asked if I had been selected to ask a question:

Despite the fact that you focused on jobs in your State of the Union and talked about how the budget request would create jobs, you have made no mention of the Employment Non-Discrimination Act, which is unlikely to pass in the 112th Congress. Without ENDA, what is the administration going to do in the next two years to make jobs more secure for lesbian, gay, bisexual and transgender Americans?

Despite not getting the chance to ask the question directly, I am seeking a response from the White House.

[UPDATE @ 5:50 PM: Anton Tanumihardja will not be deported today.

According to Lavi Soloway, the order from the U.S. Immigrations and Customs Enforcement reads: "Therefore ICE will extend the Stay ... until a decision is made by the [Board of Immigration Appeals] on his Motion to Reopen."]

At 1 p.m. today, Feb. 14, Anton Tanumihardja is scheduled to board a flight to Indonesia.

The flight will take the native of Indonesia out of the United States and place a 10-year bar on any attempt for him to return to this country to make it his home. It also, his lawyer argues in a request currently before the Board of Immigration Appeals (BIA) to reopen his deportation case, would mean that Tanumihardja "would face a constant threat of violence" if returned to Indonesia because he is gay.

He also, immigration reform advocate Lavi Soloway told Metro Weekly, will be forced to leave his partner, Brian Andersen, who he met in recent years. Unlike a heterosexual couple, Tanumihardja's partner cannot sponsor him for immigration purposes. Legislation to address that, the Uniting American Families Act (UAFA) has attracted broad support and was included in the framework for comprehensive immigration reform proposed by Sen. Robert Menendez (D-N.J.) in 2010.

"What we are now advocating is that that discretion should be applied to bi-national couples," Soloway said on Feb. 13. "We're not asking for the administration to suspend the enforcement of immigration law. We're simply asking for them to delay the prosecution of those cases – to put them on hold, to literally press a 'pause' button – because there is a legislative fix in the works that the administration supports."

Why "pause" enforcement of existing law -- especially, as even Soloway admits -- there is a "pause" in immigration reform itself because of the make-up of the 112th Congress.

Soloway explained, nonetheless, that "[t]here are estimated to be 11-12 million people in the United States who are deportable. It’s impossible for the administration to deport 11 million people -- nor do they want to. We focus on high priority, which are convicted felons.

"When we have humanitarian reasons ... and when the administration and Congress is working together to resolve specific issues through the legislative process. We do not typically rush people out the door in a deportation proceeding."

Soloway and others have been pressuring Rep. Robert Brady (D-Pa.) and Sen. Robert Casey (D-Pa.) to urge Homeland Security Secretary Janet Napolitano and the administration to take these actions in Tanumihardja's case.

After being placed in removal proceedings in 2003, an immigration judge denied Tanumihardja's request -- made without the assistance of a lawyer, Soloway says -- for asylum in 2006, a decision that was upheld by the BIA in 2007 and the U.S. Court of Appeals for the Third Circuit in 2008.

In September 2010, however, Tanumihardja filed the request to reopen his asylum request -- with a lawyer's help -- due to "deteriorating conditions for gays and lesbians in Indonesia since 2006." The way immigration law currently works, however, a request to reopen deportation proceedings does not stop any removal orders. (If it did, anyone subject to deportation could file a motion to reopen proceedings simply to stall deportation.)

Soloway told Metro Weekly that the local U.S. Immigrations and Customs Enforcement office in Philadelphia gave Tanumihardja a 90-day delay in his deportation after the September filing. That day ends today and, in order to prevent his arrest and detention, a flight leaving the country has been scheduled.

At the same time, however, the BIA has not yet ruled on the request to reopen the asylum request, a copy of which was provided to Metro Weekly. The request details that "[t]he evidence from 2006 forward is that the persecution of homosexuals in Indonesia is not only growing, but linked to regional 'perda' laws that reflect rapidly spreading Shari'a Islamic law and social values."

The motion goes on: "The evidence is also clear that the violence perpetrated against gays and lesbians is done not only by fellow citizens engaging with impunity in 'gay bashing,' but compounded by torture carried out by police and security forces."

The BIA has not ruled on the request. Because there is no stay on the deportation proceeding while the request is before the BIA, however, Tanumihardja is scheduled to leave the country today – essentially abandoning his request and his attempt to stay in the country.

Soloway, who launched a campaign -- Stop the Deportations -- in October 2010 along with Noemi Masliah. Founders of Immigration Equality, the two now are the partners in an immigration practice law firm, Masliah & Soloway.

Soloway is hoping, ideally, for "some kind of policy coming from [the Department of] Homeland Security" to allow certain individuals "in long-term, committed relationships ... to make a motion for continuance that the government would then join, if several criteria were present: long-term committed relationship, no felonies, etc."

This, Soloway, points out would not be new for the Obama administration.

"It has twice dealt in a very special way with groups of individuals facing deportation. They put a moratorium on the widows of U.S. citizens in 2009, and, in 2010, the administration announced it would defer action on the deportation of individuals who are likely eligible under the DREAM Act," he said. "So, the administration has shown that it does use its executive branch muscle when it comes to discretion about who to deport."

He adds: "It is solely within their power to determine who gets deported and when they get deported.

"Failing that, I do think that there's also an opportunity here to open a dialogue on individual cases, looking on a case-by-case basis. So, this Indonesian individual, who presents a non-frivolous motion to reopen that's credible, it's strong, it's compelling -- it should at least be given a chance to be decided."

Tanumihardja, Andersen and Soloway hope that Tanumihardja's case will be decided -- or his deportation at least delayed -- before his flight leaves the country this Valentine's Day afternoon.

[Photo: Andersen and Tanumihardja (Photo courtesy of Brian Andersen.)]

GOProud advisory council chair Tammy Bruce announced her resignation from the group today, after having particpated in events with the group throughout CPAC this weekend. GOProud board chairman Chris Barron, however, also tells Metro Weekly that the gay conservative group has added former American Conservative Union executive director Chuck Muth to its advisory council.

Muth currently serves as the president and chief executive officer of Citizen Outreach, a group that bills itself as "issues as varied as lawsuit abuse, government regulation, privatization, health care reform, school choice, social security reform, tax and spending abuses, and illegal immigration, explaining these issues in terms the average citizen can understand and act upon."

Muth opposed the effort to pass the Federal Marriage Amendment in 2004, writing at American Daily at the time:

The folks supporting the Federal Marriage Amendment want people to think it's just a measure to protect marriage. But if that's the case, why not a constitutional amendment banning divorce and adultery, as well? Any reasonable person would have to admit those two have been historically far more harmful to the institution of marriage than gay unions ever could be, right? ...

[P]roponents know that every year more and more younger folks join the electorate who don't share the same anti-gay sentiments of their parents and grandparents. If FMA-ers can't pass an anti-gay constitutional amendment this year or next, they sure as heck won't be able to pass one in five or ten years.

As to Bruce's resignation, she wrote on her site today:

I want to let you know that after being a supporter and serving as Chair of the Advisory Board since May of 2010, I gave Chris Barron and Jimmy LaSalvia my resignation Saturday night. If you search GOProud here at the blog you'll see the affection with which I’ve held both Chris and Jimmy, and I wish them well.

As Independent Conservatives and Tea Party patriots, we have a lot of work to do in the next two years taking our great nation back, and I do look forward to continuing to work with conservatives across the spectrum on the issues with which we all have in common.

Barron wrote to Metro Weekly , "We love Tammy. She hasd been a tremendous asset to this organization and continues to be a powerful voice for conservatism. We wish her all the best in her future endeavors."

In a day that included remarks at the Conservative Political Action Conference (CPAC) from GOProud advisory council members Andrew Breitbart and Margaret Hoover, the biggest talk about LGBT issues came from Ann Coulter.

The last questioner during the Q-and-A portion of Coulter's Saturday afternoon speech asked abut "the controversy at CPAC surrounding GOProud."

And she said, first, that she "talked them into dropping the gay marriage plank." There was muted applause for this line. (A message left seeking comment on this point from GOProud was not immediately returned.)

Of what she called the left's goal to "destroy the family," she said, "And now they're using the gays." Talking about the left's efforts on marriage equality and making that a strong issue, she said, "I go to sleep one night being friend of the gays, and I wake up the next day: homophobe."

To the left: "You just made up this gay marriage thing."

Then though, she said, "I have one more point."

Of conservativism and "gays," she said, "The gay argument is: 'Why do conservatives act like our sin is worth than any other sin? Did none of you have pre-marital sex?'"

Coulter agreed, saying, "I think there is a little extra animosity directed against gays." She then said that the conservative counter-argument is, "We don't go to CPAC and have a group, Republicans Against Tithing."

Her response: It's different being gay. You have all of culture telling gays, 'You should be liberal. ... This is the left trying to co-opt gays.

"For now, I would like for gays to just be part of conservatives the way women are and blacks are -- without a special designation," she told the crowd. "We don't need the special designation for it.

"There is something to being gay apart from the sodomy. That's what I want their new motto to be, by the way: Gays Without the Sodomy! This is why I get along with the gays. We like the same music, the same cocktails -- often the same men. There is a whole culture to it.

She went on to say, "I know chaste gays. I honor them. ... But, I can't tell you that -- that -- that I'm without sin -- as none of us are."

Not exactly resolving the "sin" issue, though, she concluded, "The left is trying to co-opt gays, and I don't think we should let them. I think they should be on our side. We're for low taxes. We're against crime. We're against the terrorists who want to kill gays.

"Gays are natural conservatives."

The crowd cheered.

Watch the video:

Metro Weekly caught up with Utah Sen. Orrin Hatch (R) at CPAC to talk about "Don't Ask, Don't Tell" repeal and moving forward.

Asked about the repeal, Hatch reiterated his opposition, noting that the only reason he wasn't in the Senate on Dec. 18, 2010, to vote against repeal was that he was attending his grandson's graduation.

At the same time, however, he said, "It's the law now ... Personally, I still have real questions about it. On the other hand, I don't want to be discriminating against anybody. I intend to be fair.

"It has passed. It is the law, and our side lost. And that's the way it is."

Asked if he would support rescinding Pentagon funding for implementing the repeal of DADT, he said, "No, I don't think so.

"I think we oughta see how it works, and if it doesn't work, then we would have to take action."

The Pentagon's implementation plans, first laid out by Pentagon officials on Jan. 28, are ongoing.

The position differs from former Minnesota Gov. Tim Pawlenty, who followed Hatch on the CPAC stage today. Pawlenty, in response to a question from Think Progress's Igor Volsky, said that he thought rescinding implementation funding would be "a reasonable step."

Former Republican National Committee Chairman Michael Steele was among the notable attendees at Thursday night's Andrew Breitbart-hosted GOProud "Big Party." (That, despite the fact that GOProud had called for Steele's resignation multiple times.) Among the others were two names in the GOP presidential primary hat: former New Mexico Gov. Gary Johnson (R) and out gay GOP political strategist Fred Karger.

Breitbart brought Steele up on stage at one point, and Steele's take-away message for the GOP and the conservative movement was, "We are stronger and we are better when we are united."

Metro Weekly was there:

Although we'll have more at Metro Weekly on tonight's Andrew Breitbart-hosted GOProud "Big Party" (which was crowded and featuring more than one would-be presidential candidate), the talk of the party among the journalists in attendance -- and there were more than a few -- was the apology.

GOProud's brash board chairman, Chris Barron, was in the unusual position of backing down.

From Metro Weekly's "Guess Who's Coming to CPAC?":

Asked to explain [the Heritage Foundation boycott], Barron places the blame at the feet of Cleta Mitchell, the big-name Republican D.C. lawyer who was the attorney for the groups trying to keep marriage equality from coming to the District. Mitchell did not respond to multiple requests from Metro Weekly for comment.

''I think there's a couple people in Heritage who, at the behest of Cleta Mitchell – who is just a nasty bigot … she got some of the people at Heritage early on fired up about this,'' Barron says. ''We tried very, very hard to smooth this over and to avoid any public fight with Heritage and then when Heritage came up with their excuse about how this wasn't about GOProud – first of all, we knew it was, we knew it was six months ago – but we were willing to publicly let them.''

He puts on his ''really, I'm a nice guy'' face.

''Look, Heritage does a lot of good work, and I didn't want – it looks terrible for them, and I didn't want to have them humiliate themselves. But they've seemed hell-bent on it. Their story keeps changing and now we're down to the truth, which is: It was about us. And they've lost donors. They've lost supporters.''

With a nod of agreement from LaSalvia, Barron concludes, ''There's a lot of people in the conservative movement who are looking very differently at the [Heritage Foundation].''

The "nasty bigot" line led right-wing Red State's Eric Erickson to write on Thursday morning "this is too much." That post -- and specifically his line that "GOProud is not a conservative org & its agenda is not a conservative agenda" -- was tweeted out by right-wing blogger Michelle Malkin.

That was all done by noon, though, and the next I heard of the line was when Tim Mak at FrumForum reported on an interview he had with the American Conservative Union's new chairman, Al Cardenas.

In it, Cardenas said, "I have been disappointed with their website and their quotes in the media, taunting organizations that are respected in our movement and part of our movement, and that’s not acceptable. And that puts them in a difficult light in terms of how I view things.

"It's going to be difficult to continue the relationship [with GOProud] because of their behavior and attitude."

All of which led to the apology.

Barron:

"For the past six months, we have watched as unfair and untrue attacks have been leveled against our organization, our allies, our friends and sometimes even their families. Everyone has their breaking point and clearly in my interview with Metro Weekly I had reached mine. I shouldn’t have used the language that I did to describe Cleta Mitchell and for that I apologize."

A contrite Barron is a rare sight indeed.

But, by 8:30 p.m. or so, Barron had recovered enough to be the gay host everyone would expect him to be at the Big Party.

Four hours later, after a long day of ups and downs, Barron tweeted:

Back at the hotel. The Big Party rocked.

That, and:

Almonds + a beer = dinner.

Day one of CPAC, down. Two to go.

[Photo: GOProud executive director Jimmy LaSalvia speaks at the Big Party, with board chairman Chris Barron at his side. (Photo by Chris Geidner.)]

[Photo: Donald Trump arrives at the 2011 CPAC. (Photo by Chris Geidner.)]

GOProud's board chairman, Chris Barron, decided he wanted to invite Donald Trump to CPAC.

So, he did.

Today, Trump arrived at the Marriott Wardman Park Hotel about 3 p.m. this afternoon, Feb. 10.

Of the invitation, Barron told Metro Weekly, "We invited Trump for a couple of reasons: One, because unlike the boycotters who are undermining CPAC, we wanted to be value-added, we wanted to be positive to this conference, and we're bringing something positive to this conference. We're bringing somebody who has a huge megaphone, a huge draw.

"Secondly, Donald Trump is out there talking about the issues that most conservatives care about, the fiscal issues."

Before his speech to the CPAC crowd, Trump was asked by a reporter, "Are you here to be here on behalf of the group GOProud CPAC*, on behalf of Donald Trump, or are because you're running for president?"

He replied, "I'm here because I'm Donald Trump. I was asked to be here. I have a lot of respect for the group. I'm a Republican. Let's see what happens."

He also took a question about Egypt, then was whisked up to the GOProud suite at CPAC.

Fifteen minutes later, Trump came down to speak to the attendees, where he did focus on fiscal issues -- specifically China. But, he also did tell the attendees: "I'm pro-life, against gun control, and I will fight to end Obamacare and replace it with something that makes sense."

He did not mention GOProud or LGBT issues.

Trump also -- like GOProud -- knew how to make a stir at CPAC. He took on the past year's winner of the CPAC presidential straw poll, saying of Rep. Ron Paul (R-Texas), "He has just zero chance of getting elected."

A significant part of the auditorium's crowd booed.

Otherwise, Trump was well-received by the conservative conference's attendees.

Despite the absence of any mention of GOProud by Trump in his brief address, Barron said, "I think that fact he's coming here, amidst all of this controversy and showing support for this organization, and showing support for CPAC under this attack, speaks volumes about what kind of person he is."

[* = CORRECTION: A transcription error by yours truly unintentionally changed the meaning of Donald Trump's response to the CNN reporter who asked the question. The "group" to which Trump was referring was GOProud, not CPAC. Apologies to Trump, CNN and GOProud. -crg]

On Feb. 8, Metro Weekly spoke with Grover Norquist, the president of Americans for Tax Reform, in preparation for this week’s cover, "Guess Who's Coming to CPAC?"

Catching a few minutes of his time in the week leading up to the annual conservative conference, Norquist spoke about CPAC and the role of gay conservatives – particularly GOProud – within the conservative movement of which he has been one of the leading voices for the past quarter century.

A member of the board of the American Conservative Union, which puts on CPAC, Norquist also joined the adisory council for GOProud and has defended their place at CPAC and in the conservative movement.

Because of Norquist's place in the conservative movement, Metro Weekly is sharing our interview with him here at Poliglot.

Enjoy!

* * *

METRO WEEKLY: So, generally, what are your thoughts about GOProud’s participation in CPAC and the impact of those who are boycotting because of GOProud's presence?

GROVER NORQUIST: GOProud has a strong, conservative voice. They were a co-sponsor of CPAC last year and this year. There are some who objected, but the American Conservative Union and obviously the attendees at CPAC were strongly supportive of GOProud's participation.

We had last year and this year, two of the most – we're running 15 percent ahead on registrations over last year, and last year we hit 10,000, which was a historic high that I didn’t expect that we would reach again in a non-election year, but it looks as though it would be another historic high.

So, to the extent that anyone wanted to claim that the conservative movement was not open because they were running a boycott, that certainly is not suggested that it was very representative of the movement.

METRO WEEKLY: What we’re seeing this year is that more prominent conservatives are speaking out on these issues?

NORQUIST: Look, there are going to be disagreements on policy questions. There always are, but the party and the movement are open to all Americans who share the general Reagan worldview, and GOProud is one of those groups.

MW: What do you think they're accomplishing?

NORQUIST: They have spoken on many issues, not just gay issues. They speak on taxes, they speak on regulations, they speak on foreign policy, and as such, as a result, I think conservatives and Republicans see gay Republicans as part of the broad coalition and not people who are focused on just one issue.

MW: What does this mean, though, moving forward? Do you see this as changing the way that the party is going to view gay equality?

NORQUIST: Right now, it's a sign the modern Republican Party is open to all comers, and the modern conservative movement as well.

MW: Is that going to lead to any policy change?

NORQUIST: That is a long-term conversation, and you can't pre-judge that.

The argument that people have said, "No, you can't let someone in the room because everyone will change their minds." Is exactly the conversation of the boycotters, OK?

Key issue is let's make sure everyone is invited and welcome in the party, and then we're going to have a nice, long conversation about lots of stuff. GOProud has a great deal of patience, and not everyone in the gay community has exhibited that patience.

And they've been team players, which is important.

[Illustration: GOProud's Chris Barron and Jimmy LaSalvia (Illustration by Scott G. Brooks.)]

[Photo: Norquist (Photo from Twitter.)]

Later this afternoon, Metro Weekly will be posting this week's cover story -- "Guess Who's Coming to CPAC?"

[UPDATE: The story is posted.]

We're putting it up online early as right-wing, primarily religious conservatives continue to raise questions about the role of GOProud, the gay conservative group that counts CPAC in 2010 as its public debut, at the annual gathering of conservative activists, students and would-be presidential candidates.

Here's the teaser:

"GOProud has a fight on its hands. From the left, right and middle, organizations and activists argue with, debate and even ignore the gay conservative group that's now heading into its second year at CPAC, the annual conservative conference. But – in the conservative arena that is the group's aim – GOProud is winning, as an attempted boycott because of the group's CPAC participation fizzled and the group is making serious inroads in the conservative movement. From longtime conservative activists like Grover Norquist to new media names like Andrew Breitbart, GOProud is grabbing attention – and friends – in the conservative movement. Metro Weekly senior political writer Chris Geidner talks with GOProud's Chris Barron and Jimmy LaSalvia, as well as some allies and critics, as CPAC gets under way – and as GOProud looks to the future."

I look forward to hearing people's comments and responses -- and covering CPAC in the coming days to see how things actually shake out.

[Photo: Sen. Jim Webb (D-Va.) questions senior military leadership about the "Don't Ask, Don't Tell" policy on Dec. 2, 2010. (Photo by Ward Morrison.)]

Sen. Jim Webb (D-Va.) today announced that he will not be seeking re-election in 2012. Webb has a complicated history with the LGBT community, having been the sole Democrat on the Sentate Armed Services Committe to vote in May 2010 against adding the "Don't Ask, Don't Tell" repeal provision to the National Defense Authorization Act.

By December of that year, however, he appeared to have moved significantly on the issue.

When some of the service branch chiefs expressed less than positive views about repeal in Senate hearings on Dec. 3, Webb asked them, almost rhetorically, "If someone is serving well and they are 15 years into their service … and they want to live an open and honest life. … What do we do?"

When someone responded that, until the law is repealed, the military will have to enforce it, Webb sharply replied, "I'm talking about the human dimension."

On Dec. 18, he voted both to close debate on the standalone DADT Repeal Act and for the bill's final passage.

Servicemembers Legal Defense Network executive director Aubrey Sarvis talked with Metro Weekly on Wednesday about the news.

"Senator Webb's departure will be a huge loss," Sarvis said. "Clearly, he was a strong champion of the military, servicemembers, veterans and, as we saw in the last Congress, a supporter of open service."

Sarvis talked about the changed positions of Webb over the past year.

"Clearly, this journey was a complicated and evolving one for Senator Webb. But, at the end of the day, he got there. He was on the same page with Secretary Gates and Admiral Mullen and the president," he said. "I think it's particularly unfortunate that  the senator, having made this journey, that he will be leaving the committee.

"But, the good news is that he's going to serve for another two years there. I'm assuming that he'll continue to be chairman of the very important [personnel] subcommittee. We'll continue to have issues before the Armed Services Committee for the next two years, and hopefully he'll be a part of the resolution of some of those issues."

Webb's statement:

It has been a great and continuing privilege to serve in the United States Senate. I am very proud of my talented and dedicated staff, which has worked tirelessly to resolve the issues on which I based my candidacy, and to protect the interests of all Virginians in this national forum. Among other contributions we have given our Post- 9/11 veterans the best GI Bill since World War Two; we have taken the lead in reforming our criminal justice system; we have led the way toward stronger relations in East and Southeast Asia; and we have been a strong voice in calling on China to act more responsibly in the world community. We will continue to work on these and other issues throughout the rest of my term.

However, after much thought and consideration I have decided to return to the private sector, where I have spent most of my professional life, and will not seek re-election in 2012.

Notwithstanding this decision, I have every intention of remaining involved in the issues that affect the well-being and the future of our country.

[Photo: Supporters of marriage equality in Maryland wore red to the Feb. 8 Senate hearing on S.B. 116. (Photo by Yusef Najafi.)]

As part of the Maryland Senate's consideration of S.B. 116, the bill that would bring marriage equality to the state, a hearing is being held today in the Senate.

Among those testifying in opposition is the National Organization for Marriage's Maggie Gallagher, the anti-marriage equality stalwart.

Metro Weekly's Yusef Najafi is attending -- and live-tweeting -- the hearing. Read his earlier, exclusive interview with the bill's lone Republican supporter in the Senate, Sen. Allan Kittleman (R-Carroll, Howard).

Najafi and Metro Weekly will have a full report later, but, for now, he sends along this video from Gallagher's testimony today ...

It turns out that claiming something is anti-trans humor stirs up people, and brings them out of the woodwork to tell you why you have no sense of humor. So it has gone with the two posts at Metro Weekly's Poliglot about The Late Late Show With Craig Ferguson.

As the Superbowl gets under way and other questionable examples of anti-trans humor appear on commercials, I wanted to take a minute to break down the reasons that I see for concerns being legitimately raised about the intent of the Peg Blerguson sketch (using shorthand to call it that, whether scripted or not) that ran on Feb. 4.

Despite the many commenters at Metro Weekly and elsewhere online this weekend claiming that Peg is a woman played by a man simply to reflect her mannish nature, that Peg is played by the same man who plays "Craig" when Craig plays other characters in sketches, and that the "half-sister" is a simply reference to Oprah Winfrey's half-sister discovery -- and not a trans-related "gag" -- the bottom line is that the sketch repeatedly plays off the fact that "Peg" is a female played by a man with male genitalia.

A mannish woman (though, likely, creating humor with its own attendant issues), a Craig-mocking woman or an Oprah-mocking woman would not play for laughs on that point because such laugh lines would make no sense.

It is the sex "confusion"/"repulsion" that is played for laughs -- repeatedly -- which is why it is anti-trans and why -- despite the claims -- this is a mockery of a trans character.

Here are five key moments (with explanation) displaying this in the sketch:

Peg has "balls," per the robot.
(If Peg is supposed to be simply a "mannish" woman (with its attendant own issues) and not a man, then this joke would not be funny (or possible).)

Peg, after attempting to cross her legs: I smooshed the lady parts.
(Again, the "joke" is that she actually "smooshed" her man parts, despite being dressed in female clothes and protraying a female character.)

Craig: Have you ever been to Phoenix, Arizona?
Peg: I've never been to Phoenix, Arizona.
Craig: It's a lovely town, full of transvestites.
Peg: I'm adding that to the agenda.
(This is, to me, the most clear point to show that the joke is premised on "Peg" and Craig's awareness -- and the audience's -- that they are playing this for trans-related laughs.)

Craig: If CBS offers to let you do a CBS Cares spot, what would it be?
Peg: Don't be me.
(While, potentially, just a joke about Peg being an ugly woman (again, with its own attendant issues), the earlier "transvestite" reference makes this joke perhaps the most cutting and potentially anti-trans.)

Peg makes a "he-she" reference.
Craig: Man, you really creep me out.
(This is a direct response to a "he-she" comment, which appears to be a direct refutation of any claim that this is not anti-trans humor.)

Craig Ferguson may be a wonderful person, he may have gay guests on regularly -- as he did later on the Feb. 4 show -- and he may be a liberal who loves trans people, but on Feb. 4, the "Peg Blerguson" sketch (whether scripted or not) was played for anti-trans laughs later in the same day that a report from the the National Gay and Lesbian Task Force and National Center for Transgender Equality reported that anti-transgender discrimination is all too prevalent in America.

Following up on the Metro Weekly post about Craig Ferguson's Feb. 4 sketch featuring his "half-sister" -- played by a man and named "Peg" -- Metro Weekly received a significant number of comments defending Ferguson and stating that those having a problem with the sketch were "oversensitive" or in need of "a sense of humor."  

Metro Weekly asked Meghan Stabler, a member of the board of directors of the Human Rights Campaign, for her thoughts. Stabler is a business executive, national LGBT activist, transsexual woman, and transgender advocate.

Of the sketch, she wrote of its punchline, "Unfortunately for this [sketch], and for us, there was no punchline, unless you regard transition as a joke and therefore transgender people as a human punchline."

In her conclusion, Stabler calls for action, writing, "This is the time for the media to sit down with us face to face and explain -- eye-to-eye -- why they believe their jokes about us are funny and to hear from us why we are not laughing."

Below, please find Stabler's complete response provided to Metro Weekly:

When the foundation of the comedic stage is utter mockery and dehumanization of a minority is it truly comedy?

In the last several days transsexual, transgender and gender non-conforming people have become the visible brunt of comedy, with Lorne Michael's irresponsible Saturday Night Live parody of "men in dresses" taking once a day "Estro-Maxx" estrogen on NBC, to last night's The Late Late Show with Craig Ferguson on CBS in which his "half-sister" Peg, another bearded, "hairy man in a skirt," to whom at one point Craig referred to as a "he-she."

American society is now geared toward everything being "extreme and accessible." Yet, in doing so, where is the boundary of responsibility before it becomes meanness, and before it becomes recklessness? One would think comedy could safely push the boundaries without being offensive. Obviously not.

We should all be shocked and appalled with what was coming out in the current narrative of comedy. The lives of gay and lesbian people are being woven into the fabric of TV shows such as GLEE and Modern Family. Even though we have a long way to go before full rights are afforded to us, we can still be shown as equals to our peers. Comedy's ability to mock that part of our community has significantly lessened, but has it done so at the risk of emphasizing the focus on the transgender community?

I think it has, and it needs to stop.

To many of us who have journeyed along the deeply emotional and stressful path to transition our gender, the parody and acting portraits were utterly offensive. Hidden behind and along that journey is significant stress, deep emotion, extreme risk and even worse -- suicide or homicide.

To live our lives authentically takes deep courage mirrored with the real fears and deep-rooted societal prejudices that all too often manifest themselves as workplace bigotry, un- and under-employment, loss of family and friends, and most unfortunately, harassment and homicides.

Some will likely argue that the portrayal was humorous, a joke, but in true comedy there is always a punchline. Unfortunately for this one, and for us, there was no punchline, unless you regard transition as a joke and therefore transgender people as a human punchline. In doing so, the comic must also understand that in conveying it as humorous comes the risk that sometimes transgender people will be the punching bag.

The meme conveyed to the public is that transsexual women are only "men in skirts" and should not be taken seriously, a problem that could cause actual physical and mental harm to transsexuals, transgender and gender-nonconforming people, whose sole desire is just to fit in to society.

I am no longer asking the show hosts, NBC, CBS, production companies and programming staff for an apology, I am asking them for a serious and honest sit down with us. I'd like them to understand our stories and where our pain with their ridicule comes from. This is the time for the media to sit down with us face to face and explain -- eye-to-eye -- why they believe their jokes about us are funny and to hear from us why we are not laughing. Until there is understanding and open, honest dialogue, the comedy will still hurt, and members of the transgender community and allies will not be laughing.

Sadly, society has a long way to go before transsexual, transgender and gender-nonconforming people receive equality. Media can help -- rather than hurt.

Tonight, the night after the National Gay and Lesbian Task Force and National Center for Transgender Equality released a report about the widespread prevalence of anti-transgender discrimination, The Late Late Show With Craig Ferguson on CBS presented a sketch portraying anti-trans stereotypes and playing off of them for humor at every turn.

The sketch featured Ferguson's "half-sister" -- played by a man -- coming out in a skirt and female's shirt, with an oddly painted face appearing to suggest significant facial hair. The first "gag" was her apparently showing male genitalia as she sat down -- to "eww" gasps from the audience.

Ferguson continued forward, mocking at several points that his "half-sister" was sexually unappealing, saying, for example, that no one wanted her in a date auction. There also were repeated negative references to Ferguson's "half-sister" masturbating.

Ferguson also went so far as to include a "he-she" reference at one point.

Most unfortunately, the gag kept referencing the "CBS Cares" program, which CBS describes as "PSAs featuring Talent from many CBS programs."

The site goes on to say the PSA have included focus on "Alcohol Abuse, the Arts, Autism, Bipolar Disorder, Breast Cancer, Cervical Cancer, Child Abduction, Child Advocacy, Children's Health, Colon Cancer, Depression, Diversity/Tolerance, Drug Abuse, Education, Epilepsy, Heart Disease, HIV/AIDS, Identity Theft, Menopause, Mentoring, Obesity, Osteoporosis, Parenting, Prostate Cancer, Schizophrenia, Suicide Prevention, Violence Prevention (including Spousal and Child Abuse) and the V-Chip."

Accidentally on-point, the "half-sister" character said at one point, "If CBS really cared, they wouldn't broadcast this crap every night."

[NOTE: Metro Weekly will post the CBS video once it becomes available. Thanks, in the meantime, to Matt Cherette, for getting us the clip tonight.]

[Photo: Screen capture from early in Ferguson's Feb. 4, 2011, monologue.]

The Los Angeles Times reports today on a Wednesday interview with the new California Supreme Court Chief Justice, in which she says the decision whether to take the Proposition 8 matter could come next week.

From the LA Times:

Chief Justice Tani Cantil-Sakauye said Wednesday that the California Supreme Court may decide "as soon as next week" whether to weigh in on the federal Proposition 8 appeal and expressed hope that a Southern California Latino would be chosen to succeed departing Justice Carlos R. Moreno. ...

The new chief justice has declined to reveal her views about gay marriage. As an appeals court judge in Sacramento, she performed a wedding for a same-sex couple "as a favor to someone else who had a family emergency," she said. Same-sex marriage was legal for six months in 2008. "I didn't have any qualms about it," she said.

As Metro Weekly reported this past week:

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."

The final submissions to the court on the matter are due by today. 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.

It is that decision to which Cantil-Sakauye is referring when she says a decision could come next week.

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 at the state's high court.

[Photo: Cantil-Sakauye (Photo from the California Supreme Court website.)]

This morning, President Barack Obama addressed the National Prayer Breakfast, an annual event sponsored by The Fellowship -- also known as The Family, where he discussed his prayers for recovery for Rep. Gabrielle Giffords (D-Ariz.) and an end to violence in Egypt.

Calling attendance a "tradition that I'm proud to uphold," Obama discussed his upbringing, including "the equal worth of all men and all women."

"Despite the absence of a formal religious upbringing," he said, the religious civil rights leaders were some of his earliest role models. He spoke up his work as a community organizer, his marriage to Michelle Obama and how "these past two years, they have deepened my faith."

Calling his faith a "sustaining force," Obama referenced questions about his faith, saying it has been "all the more so when Michelle and I hear our faith questioned from time to time."

Talking about his personal, recurring prayers, he said that, first, "I pray for my ability to help those who are struggling.

"The second of my recurring themes is a prayer for humility. ... It's useful to go back to Scripture to remind us that none of us has all the answers."

The third prayer, he said, was aimed at becoming closer to God, saying that he prays that "[w]e might every so often rise above the here and now."

[Watch Obama's address at C-SPAN.]

Unlike last year's breakfast, in which Obama dealt directly with anti-LGBT legislation being considered in Uganda, Obama did not address LGBT issues in his speech.

Outside the Washington Hilton, however, Get Equal and a handful of activists held a "Breakfast Without Bigotry" -- which Get Equal described on Facebook as an event to " protect our lives and speak up for those who can't for fear of imprisonment and murder" -- to protest The Family's sponsorship of the event.

Earlier this week, Get Equal managing director Heather Cronk wrote in an email, "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."

Metro Weekly was at the Get Equal protest ...

In the first two years of the Obama administration, Media Matters for America had expended some serious energy toward addressing LGBT issues, most notably in its work helping to refute criticism of and attacks on Kevin Jennings, the assistant deputy secretary for safe and drug-free schools in the Department of Education, and spearheading the joint organizational effort to produce the "Myths and Falsehoods on Don't Ask, Don't Tell."

Now, as Media Matters starts up Equality Matters to address LGBT issues head-on rather than as part of its other work, the organization is losing Karl Frisch, one of the two people who had been key to the organization's LGBT work in recent years. In addition to the work against Jennings' opponents, the out gay Frisch often countered anti-LGBT media coverage and questioned anti-LGBT media attitudes.

The other, Brandon Hersh, left Media Matters late last year to work for Griffin Schake, the communications firm run by Chad Griffin (of the Propostion 8 lawsuit fame).

Frisch and former Media Matters president Eric Burns are leaving to form Bullfight Strategies, along with another founding partner, Clay Johnson. From the new firm's founding news release:

Today, Media Matters for America president Eric Burns announced his departure from the organization to launch a new strategic communications firm -- Bullfight Strategies. Media Matters contributor Karl Frisch also announced his departure to partner with Burns. They first joined forces working on the House Rules Committee for Rep. Louise Slaughter (D-NY) where they spearheaded efforts to address Republican corruption and Congressional ethics.

Also partnering with the duo is Clay Johnson, an original co-founder of the powerhouse political Internet consultancy Blue State Digital, which provided the online tools and technology propelling President Obama into the White House. He will lead the firms efforts in building technology platforms to assist progressive communications professionals and strengthen left-leaning media infrastructure.

Burns and Frisch built the backbone behind Media Matters rapid response communications structure that has forever altered the political and news media landscape. In the House Rules Committee they aggressively pursued Republican corruption offering the messaging and strategy that eventually led to the 2006 ethics reform in Congress.

Although Media Matters has lost Frisch and Hersh, the organization has brought on former Clinton White House official Richard Socarides, former Advocate reporter Kerry Eleveld and former SLDN spokesman Trevor Thomas in recent months to staff Equality Matters.

[Photo: Frisch (Photo from Twitter.)]

Some news tonight from the Richmond Times-Dispatch:

Attempts to ban gays from openly serving in the Virginia National Guard and, conversely, to have the Guard adhere to the same regulations as the U.S. Department of Defense, died on Tuesday in a House committee.

The House Rules panel dispatched House Bill 2474, the proposed ban sponsored by Del. Robert G. Marshall, R-Prince William, over what members called practical considerations.

Del. Bill Janis, R-Henrico, said different standards for members of the state's Guard versus other service members could present a "management and leadership nightmare" if they were to serve together.

Metro Weekly previously reported on the possibility of the bill in December 2010, when out gay Del. Adam Ebbin (D-Arlington, Fairfax) predicted this outcome, telling Metro Weekly, "I believe that it won't advance past the committee in the House of Delegates. It will probably be buried if it's heard at all."

Sen. Allan Kittleman (R-Carroll, Howard), who had been supporting civil-union legislation in Maryland in recent weeks, today announced his support for full marriage equality -- and for the marriage bill introduced on Jan. 25.

In a statement released today, Kittleman said, "with the civil union legislation no longer being a viable option, I was put in the position of deciding whether to support same-sex marriage or voting to continue the prohibition against same-sex marriage. As a strong proponent of personal and economic liberty/freedom, I simply could not, in good conscience, vote against SB 116."

Equality Maryland's communications manager, Linsey Pecikonis, praised the move, telling Metro Weekly, "With Sen. Kittleman coming out in support of marriage equality, we are reminded that the pursuit of civil rights is not limited to party affiliation.

"We know that there are many citizens of varied faiths, varied political beliefs, and varied life experiences who understand that to seek equal treatment under the law is a core American value, and one that truly unites us as citizens in the Free State," she said. "Equality Maryland looks forward to continuing its work with leaders like Senator Kittleman to achieve full equality and legal parity for gay, lesbian, bisexual, and transgender Marylanders."

Explaining his changing position on the matter, Kittleman said, "[M]y primary goal has always been to ensure that same sex couples have the same rights and responsibilities as married couples currently have in Maryland. I see this issue as a civil rights issue. I was raised by a gentleman who joined with others in fighting racial discrimination in the 1950s and 1960s. Watching him fight for civil rights instilled in me the belief that everyone, regardless of race, sex, national origin or sexual orientation, is entitled to equal rights."

In the midst of promoting his support for his civil-unions bill, Kittleman resigned in January as the Republican party leaders in the state Senate. 

Read Kittleman's full statement after the jump.