In a docket entry posted today on the California Supreme Court's website, the court announced that it will be hearing arguments on Sept. 6 in the certified question it accepted from the U.S. Court of Appeals for the Ninth Circuit in the Perry v. Brown challenge to Proposition 8 about whether the proponents of Proposition 8 have standing to appeal the August 2010 trial court ruling striking down Proposition 8 as unconstitutional.

The question before the California Supreme Court on that date, at its base, is whether California law allows the proponents of ballot initiatives to defend laws -- like Proposition 8 -- in court in a situation -- as with Proposition 8 -- where the state's officeholders have chosen not to appeal the loss at the trial court.

Following the December 2010 arguments regarding the appeal before the Ninth Circuit, the appeals court sent the certified question to the California Supreme Court, asking it to answer a question that relates to the Article III requirement under the U.S. Constitution that all matters before the federal courts be "cases" or "controversies." That requirement has been interpreted to mean that there must be a party with "standing" bringing the case -- or here, the appeal.

The question posed by the Ninth Circuit is:

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.

In February, the California Supreme Court accepted the certified question and set a schedule for the filing of briefs on the question "to accommodate oral argument in this matter as early as September, 2011." Today, the court set that oral argument for 10 a.m. Sept. 6 in San Francisco.

Following the argument, an answer would be sent to the Ninth Circuit, which would then take the Perry case -- which was brought by the American Foundation for Equal Rights and litigated by lead attorneys Ted Olson and David Boies -- back under advisement and decide how it wishes to proceed on the federal standing question.

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 -- the "merits" decision from the trial court that Proposition 8 is unconstitutional -- could go forward.

But, as Boies said at the December 2010 arguments before the Ninth Circuit, the standing question will not be answered definitively by the California Supreme Court. As such, the appeals court could call for additional briefing and/or oral arguments following the California Supreme Court decision on the certified question, which could put off a decision on the merits of the case -- even if the proponents are found to have standing -- further.

[This post was expanded and updated through 9:55 p.m.]

[UPDATE @ 10:30 PM: Chad Griffin, AFER co-founder and board president, said in a statement:

"I am very pleased that the Supreme Court of California calendared our case for the first day of their fall session. The governor and attorney general of California – and the United States District Court – all have found Proposition 8 unconstitutional. I am confident that the California Supreme Court will swiftly reach a decision on this question, and that this nation is now one step closer to seeing the dark walls of discrimination finally crumble."]

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Throughout the life of "Don't Ask, Don't Tell," Servicemembers Legal Defense Network published the "Survival Guide" -- a booklet to help guide servicemembers living under DADT.

Today, in a move that shows the changed landscape in the military -- and within the LGBT organizations that have pushed for DADT repeal -- SLDN is releasing "Freedom to Serve: The Definitive Guide to LGBT Military Service" -- a booklet to help guide servicemembers after DADT.

Among the four focus areas of SLDN, per the guide, are:

• Representing and defending LGBT service members through free and direct legal services
• Advocating for equality of benefits for legally married same-sex service members
• Assisting veterans to correct or upgrade their discharge paperwork
• Litigating in the courts, when necessary, to advance full LGBT equality in America's military

The booklet addresses a wide range of topics. The "Tips for Serving" section discusses issues from "being publicly out" to pornography. Other sections address "The Uniform Code of Military Justice," "Benefits and Family Programs," "Transgender Service," "Service Members Discharged Under DADT or Prior Policies" and more. At the end of the guide are links to more than 75 resources for military servicemembers, from organizations like Servicemembers United and OutServe to the National Center for Transgender Equality and Metropolitan Community Churches.

In a news release announcing the guide -- and SLDN's re-launch of its website to reflect the changed aims -- SLDN executive director Aubrey Sarvis said, "As has been our core mission since the founding of SLDN, we stand ready to represent and defend LGBT service members whenever the need arises, and our new online site reflects that ongoing commitment, while providing the most up-to-date and relevant information possible for those serving our country and those who support them."

DOWNLOAD the guide: SLDN-FreedomtoServe.pdf

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On Sunday, July 24, as couples across New York began marrying, playwright and activist Larry Kramer -- heralded earlier this year at the Tony Awards ceremony for the revival production of his play The Normal Heart -- was quoted by The New York Times in a way that has led to much debate and discussion in the days since. From The Times:

Larry Kramer, the playwright and longtime gay rights advocate, said that as long as the federal government continued not to recognize same-sex marriages, the celebration in New York on Sunday would be misguided.

"These marriages, in whichever state, are what I call feel-good marriages," Mr. Kramer said. "Compared to the benefits heterosexual marriages convey, gay marriages are an embarrassment — that we should accept so little, and with so much hoopla of excitement and self-congratulation."

Today, Kramer responded to the criticism, in a document he provided to Metro Weekly and other outlets via gay journalist Rex Wockner. In it, he writes:

It is very difficult to take a strong position in the gay world without being, at the least, misunderstood, and at the most extreme, vilified mercilessly. I suppose it's like this in the straight world as well. Perhaps I shouldn't bitch so when I'm taken to such extremes as a recent quote from me in The New York Times has provoked. I have always maintained fervently that in our world, in any world, you have to speak loudly and boldly to be heard at all. And my loud voice, which I cherish and try to use as much as I can to aid causes and beliefs I support, is one I wish everyone else also possessed and used. God, whoever made us, gave us voices to use, to speak up with. So I shouldn’t complain when my anger comes back to hit me in the face. Usually I don't. Usually I'm pleased when my words provoke a usually passive population into getting off their asses and, well, using their own voice.

I am upset this time, though, because I'm being tarred for something I did not say. And this misstatement in my behalf is now escalating beyond sane margins and I feel the need to step in and respond, to hopefully turn this into what I believe is known as "a teachable moment."

I did not say, "Larry Kramer Hates Gay Marriage," as The Times quote has now allowed many bloggers around the world to revise, rewrite, and circulate like mad bulls seeing red.

Here is what I wrote and submitted to The New York Times:

"The historic and cultural significance of this moment is that once again the gay population of this country continues to accept second best. These marriages, in whichever state, are what I call 'feel-good marriages.' They convey little in the way of benefits (and in some instances they are even financially punishing to those who embark on them). Compared to the benefits heterosexual marriages convey, gay marriages are an embarrassment - that we should accept so little, and with so much hoopla of excitement and self-congratulation.

"Most straight people who are congratulating us so effusively don't understand that these marriages share none of their federal benefits and entitlements, the right to inherit without punishing taxation, the right for our joint incomes not to be taxed so hideously high, the right to share insurances -- there are over one thousand benefits worth money that the federal government bestows on heterosexual marriages and which our state marriages don't. So why do we continue to get so excited when so few worthless crumbs are thrown our way?

"I have from the beginning never understood the philosophy and tactics of our various organizations who appear to be calling the shots on this issue. If we are to wait for a majority of states to recognize gay marriages, we'll all be dead. When are we going to recognize that until the Supreme Court blesses our union, we continue to be worthless and powerless, which is the way our enemies wish us to remain. When will we face up to the fact that no sooner does a state grant us marriage, than our enemies immediately tie up the courts in endless litigations to disallow them, as in the monstrous mess that has become California. Our enemies have bottomless pockets to fight us with. It has been discovered that the biggest contributors to the California wars are and have been the Mormon and Catholic churches. I do not disparage any gay couple's desire to wed in New York, or anywhere else, and in so doing feel and take joy from this act. But let us all recognize that beyond this euphoria, these marriages are hardly worth the paper they are printed on.

"And once again, I can only raise the cry: how long are we as a people going to accept such shabby and unequal treatment?"

Kramer then noted the portion that The New York Times used of his quote and continued:

Now this response of mine has been headlined across the globe, from Broadway to the West End, from Kenya to New Zealand, as "Larry Kramer hates gay marriage," followed by many commentaries about what a crank I am, what an old fart I have become, coupled with that classic gay insult, "and he's so ugly," ending with "when is he ever going to shut up?" As I said, I'm used to this. It comes with the territory. I just wish that ALL of us could read and digest and comprehend my complete statement as above and realize what I am really saying: We are being bought off, once again, with only a miniscule fraction of what we are entitled to as equal human beings under our country's Bill of Rights.

Believe me when I say that I very much want to get married to my partner, but only when that marriage is equal to what heterosexual marriages convey by law, the law of the United States, and not just New York State.

And I do not disparage those who choose to marry under the present woefully unequal conditions. I just wish that they, and all gay people everywhere, would realize that they are accepting so little when we are pledged so much more by and in this one nation, indivisible, with liberty and justice for all.

[UPDATE @ 6:30 PM: Another outspoken gay voice, GOProud board chair Chris Barron, took umbrage at Kramer's response, writing on Twitter in response to the Metro Weekly post that "Marriage should be about love and commitment not making a political statement." Asked to expand upon his comment, he wrote to Metro Weekly:

Marriage is about love and commitment. It's about taking responsibility for another person, about taking vows that should bind two people together for life. Marriage is not and should not be about making a political statement. I loathe the way some on the right have turned marriage into little more than a political football, and it sickens me to see any gay person mimic this reprehensible approach. Don't be surprised when the next front in the culture wars will be between average gay people who embrace the institution of marriage and the counter-culture left wing gay activists who don't really give a damn about the institution.]

[Photo: Larry Kramer in 2010. (Photo by David Shankbone.)]

Today, New York Attorney General Eric Schneiderman jumped into the ongoing national debate over the federal definition of marriage contained in Section 3 of the Defense of Marriage Act -- supporting the lawsuit filed by Edith Windsor, who was forced to pay a $350,000 estate bill because of the federal government's refusal to recognize Windsor's marriage to a woman.

Windsor's case is one in which the House Republican leadership, through its 3-2 majority on the House Bipartisan Legal Advisory Group, has been been defending DOMA in court challenges since Department of Justice announced in February that it would no longer be defending Section 3 of DOMA in court.

In a brief filed in the U.S. District Court for the Southern District of New York today, Schneiderman -- representing the legal view of New York -- detailed New York's practice of recognizing "same-sex marriages that were solemnized under the laws of other States or nations, such as plaintiff Edith Windsor's Canadian marriage to Thea Spyer."

He goes on to discuss New York's marriage law itself, writing, "More recently, New York enacted the Marriage Equality Act, which allows same-sex couples to marry in New York. This statute represents the next step along a path on which New York long ago embarked, the path of extending equal treatment under law to same-sex couples."

Digging into the legal dispute, Schneiderman details how "DOMA is an unprecedented intrusion into the power of the states to define marriage." It is here that Schneiderman's brief most clearly echoes the lawsuit brought by the state of Massachusetts against Section 3 of DOMA, with New York's attorney general discussing the Tenth Amendment -- which is not a part of Windsor's lawsuit but was a basis for striking DOMA in the Massachusetts suit brought and won at trial court by Massachusetts Attorney General Martha Coakley (D).

The brief then explains how and why, in New York's view, sexual orientation classifications -- such as DOMA -- should be subjected to heightened scrutiny by courts, taking a similar view to that expressed earlier this year by the U.S. Department of Justice and President Barack Obama. Under Supreme Court equal protection precedents, a law subject to heightened scrutiny is presumed to be to be unconstitutional unless the government can prove otherwise.

Schneiderman, however, goes further than the DOJ analysis, writing, "The Court need not resolve this particular question regarding the appropriate level of scrutiny, both because DOMA also discriminates on the basis of sex, which indisputably requires intermediate scrutiny, and because it fails any level of scrutiny that could be applied here."

The brief, which is signed by Assistant Attorney General Simon Heller, is filed for himself, Scheiderman, Solicitor General Barbara Underwood and Deputy Solicitor General Benjamin Gutman on behalf of the state of New York and concludes that "DOMA does not advance any legitimate governmental interest."

Moreover, they write, "It cannot survive the scrutiny that is warranted because of the groups that it disadvantages and because of the intrusion on an area that is at the heart of state sovereign power. Accordingly, it must be invalidated as a violation of the equal protection component of the Fifth Amendment’s Due Process Clause."

* * *

LAW DORK NOTE: In one of the most interesting passages, Schneiderman explains why the Tenth Amendment and federalism principles are relevant, writing:

Although plaintiff has not raised a Tenth Amendment claim in her complaint, principles of federalism should inform this Court’s review of her equal-protection claim as well. Federalism protects not merely the interests of state governments, but also individual liberty: “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). The power of Congress is at its lowest when it seeks to discourage States from enacting statutes, like the Marriage Equality Act, that are at the core of the States’ sovereignty. In analyzing the validity of the Gun-Free School Zones Act under the Commerce Clause, Justice Kennedy instructed that “[A]t the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.” United States v. Lopez, 514 U.S. 549, 580 (1995) (Kennedy, J., concurring). So too here, the analysis of the statute must take into account that it intrudes on an area of traditional state concern.

* * *

READ the brief: NYAG-WindsorvUS.pdf

[Photo: Schneiderman]

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This morning, I joined Bruce DePuyt for NewsTalk, the TBD.com/News Channel 8 daily news program to talk about the multitude of recent LGBT developments over the past couple weeks.

On a panel with Rev. John Crestwell of the Unitarian Universalist Church of Annapolis and Pete Tucker, a progressive blogger who writes at TheFightBack.org, we discussed marriage in New York and Maryland, the Defense of Marriage Act and the Respect for Marriage Act, and the changing landscape on the issue. 

Among the other topics discussed was the lack of movement on the Employment Non-Discrimination Act in this Congress or the past one. Also mentioned: the repeal of "Don't Ask, Don't Tell" and anti-bullying legislation.

The segment begins at 35:50. Watch below:

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A lawsuit filed by opponents of same-sex marriage in New York that seeks to void the law "is without merit," a spokesman for Gov. Andrew Cuomo (D) said today.

The lawsuit asks for the Marriage Equality Act to be declared void by virtue of a claimed violations of the state's Open Meetings Laws and the constitutional provision that dictates when the governor can issue a "message of necessity."

The governor's spokesman, Josh Vlasto, added: "The plaintiffs lack a basic understanding of the laws of the state of New York."

In large part, the lawsuit claims that, by virtue of the Republican caucus constituting a quorum of the Senate, a meeting of the caucus in which Mayor Michael Bloomberg (I) attended and a dinner that Cuomo held for Senate Republicans violated the Open Meetings Laws. Also, senators turned their cell phones off, which, the lawsuit claims, is unusual:

Generally, Senators keep their cell phones on during business hours to permit their staff and members of the public to contact them.

[UPDATE @ 5:10 PM: According to the New York Open Meetings Law exemptions, "Nothing contained in this article shall be construed as extending the provisions hereof to deliberations of political committees, conferences and caucuses [means a private meeting of members of the senate or assembly of the state of New York ... without regard to whether such political committees, conferences and caucuses invite staff or guests to participate in their deliberations." Capitol Confidential gives some background on the provision.]

The "message of necessity" portion of the lawsuit does not appear to include any information even alleged to be supporting the plaintiffs' argument that the message was issued unconstitutionally. The lawsuit states only that "there was no pressing state need to press the act on June 24, 2011."

One of the striking, though not surprising, quirks of the lawsuit is its constant insistence of using quotation marks around all mentions of marriage that relate to same-sex couples:

Immediate and irreparable harm will occur if injunctive relief is not granted insofar as couples will be "marrying" pursuant to a law that is invalid and, ultimately, could result in the invalidation of those "marriages."

The move, whether its aim or not, has the effect of making the lawsuit look more like a political than a legal document.

The lawsuit -- though brought in the name of New Yorkers for Constitutional Freedoms, Jason McGuire, Duane Motley and Nathaniel Leiter -- is lawyered by Liberty Counsel attorney Rena Lindevaldsen.

Lindevaldsen has a long history of bringing such cases. According to her Liberty University School of Law biography, "She filed the first lawsuit to enjoin San Francisco's efforts to 'marry' same-sex couples, and obtained two orders enjoining public officials in New York from officiating same-sex unions. She successfully challenged New York City's decision to publicly fund a high school for homosexual students and a Maryland school board’s decision to implement sex education curriculum that presented materials hostile to conservative, religious beliefs. In addition to her efforts to protect children and families, she regularly provided representation to Child Evangelism Fellowship in its efforts to gain access to public schools for after-school Good News Clubs."

Read the lawsuit: NYMarriage-Complaint.pdf

[Photo: Cuomo]

In an order filed by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, the court has kept in place the "Don't Ask, Don't Tell" policy while it considers the appeal in Log Cabin Republicans v. United States -- with the caveat that it also kept in place the bar on "investigating, penalizing, or discharging" any current servicemembers that it ordered on July 15.

The move from the court's chief judge, Alex Kozinski, and Judges Kim Wardlaw and Richard Paez came just a few hours after President Barack Obama and military leaders certified that the military was ready for DADT repeal, the final step necessary to bring about the end of "Don't Ask, Don't Tell" -- technically, 10 U.S.C. 654 -- in 60 days.

The judges maintained that "[i]n its briefs, the government does not contend that 10 U.S.C. § 654 [-- the DADT law --] is constitutional," but also noted today's certification, writing, "The President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have now certified that the implementation of repeal of Don’t Ask, Don’t Tell is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the armed forces."

As such, it reversed its July 6 order lifting the stay on U.S. District Court Judge Virginia Phillips's judgment that stopped the government from enforcing DADT worldwide -- while keeping the bar on discharges in place until repeal takes effect on Sept. 20 or it issues a ruling on the appeal, whichever comes sooner.

The catch, though, is that the Ninth Circuit isn't done dealing with the case before repeal takes effect. Almost three weeks before then, on Sept. 1, the government is due to defend DADT -- and its request to vacate the trial court judge's ruling that DADT is unconstitutional -- in the appeals court.

Now that certification has happened, the question of whether the case is "moot" after repeal and the trial court judgment should be vacated, which would effectively wipe the ruling off the books, likely will be one of the key questions before the court at the Sept. 1 argument.

At the Pentagon today, Defense Department general counsel Jeh Johnson defended the government's argument, saying, "Overall, we take that view that once certification and repeal happens, that lawsuit becomes moot."

Later, he added, That lawsuit is about the constitutionality of 10 U.S.C. 654. ... 10 U.S.C. 654 is being repealed. ... In 60 days, it will be off the books. So, that's why we say the lawsuit should be dismissed because the issue is moot."

LCR's attorneys, however, have argued that certification and subsequent repeal do not end matters, noting on July 21, that -- in addition to the injunction it sought -- Phillips's judgment in the case included a declaration that "DADT infringes the fundamental rights of current and prospective servicemembers and violates their Fifth Amendment due process rights and their First Amendment rights of freedom of speech and petition."

Accordingly, LCR asserts, "Because individuals who were discharged under DADT during the 17 years that statute has been in effect continue to this day to sustain identifiable collateral consequences from their unconstitutional discharges, a substantial controversy continues to exist between the parties that will not be removed by repeal and the case will not then be moot."

As the 60-day clock ticks down -- and if this evening's Ninth Circuit order is kept in place -- there will not be any more servicemembers discharged under DADT. The question of what will happen to the LCR suit after repeal, however, remains far less clear.

Read the order: NinthCirOrder-LCRvUS.pdf

[Photo:  Jeh C. Johnson, Defense Department general counsel (left); Maj. Gen. Steven. A. Hummer, chief of staff to the Repeal Implementation Team (RIT); and Vee S. Penrod, deputy assistant secretary of defense for personnel and readiness and chairwoman of the RIT brief reporters about the "Don't Ask, Don't Tell" repeal certification on Friday, July 22, 2011. (Photo by Chris Geidner.)]

On Dec. 22, 2010, President Barack Obama looked up after signing the Don't Ask, Don't Tell Repeal Act into law and told the audience assembled, "This is done."

Today, after 3 p.m., Obama signed another document, also signed by Defense Secretary Leon Panetta and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff: the certification required under the act. In a statement, he said, "'Don't Ask, Don't Tell,' will end, once and for all, in 60 days — on September 20, 2011."

Read Metro Weekly's report on certification, "Gone in 60 Days."

Download the certification:DADTCert.pdf

[Photo: Maryland out gay Sen. Rich Madaleno (D-Montgomery) speaks at a news conference on July 22, 2011, in which Gov. Martin O'Malley (D) announced his support for a marriage equality bill in the state in 2012. (Photo by Yusef Najafi.)]

Maryland Governor Martin O'Malley (D) met with Marylanders for Marriage Equality, members of the LGBT legislative caucus, Lt. Governor Anthony G. Brown and others to announce his support for marriage equality legislation in the state in 2012.

"Marylanders of all walks of life want their children to live in a loving, stable, committed home, protected under the law," he said. "[T]he legislation we plan to introduce in the 2012 legislative session will protected religious freedom and equality of martial rights under the law."

What's changed since the bill stalled in this year's legislative session, O'Malley added, was the urgency of this type of legislation, saying that in 2012 it will be a priority and that he would make it an "administration priority."

Brown echoed that sentiment, adding that he's enthusiastic about working with O'Malley and lawmakers to ensure equality for all Marylanders. 

"Every member of our community should enjoy the same freedoms and share the same responsibilities," Brown said. 

Joining the governor at the podium in the Governor's Reception Room at the Maryland State House in Annapolis was, at one point, Sen. Rich Madaleno (D-Montgomery), who is the only out LGBT state senator and was the lead sponsor of marriage equality legislation during the 2011 session. Madaleno said the governor's announcement created "the second exciting moment" he will experience in the Governor's Reception Room. 

"It will only be surpassed by the moment in the next nine months that we will stand here, with your pen in hand, signing into law the marriage equality bill," he said, receiving loud applause. 

O'Malley pointed to New York, saying that the state's lawmakers showed that it is possible to protect religious freedoms and provide marriage equality to all of its citizens. 

"That's what we are going to do with this bill in the upcoming session." 

Although a 2011 marriage equality bill was shelved in the state's House of Delegates, when it was recommitted back to committee, O'Malley says he's optimistic that there is enough time to secure votes for passage of similiar legislation in 2012.

"I'm very optimistic that if all of us work hard and if all of us stay focused on the important principles at stake here -- which are freedom of religion and also equal protection under the law and the dignity of every individual -- that we can pull together the necessary votes for passage."

Asked about his thoughts on a referendum effort for a 2012 marriage equality bill by opponents of it, if it does pass the House and Senate successfully, O'Malley said: "That's their right under our laws."

"That's not my primary focus," he added. "I'm focused on working with this broad coalition to pass marriage equality laws that respect and protect rights equally under the law. What others do in terms of referendum and those sorts of appeals, it's their right, each citizen needs to do their duty under the law as they see it and I'm doing mine as governor as I see it." 

Out lesbian Del. Heather Mizeur (D-Montgomery County) said the governor's support of marriage equality legislation will make a great impact during the next legislative session.

"There's no bigger megaphone in the statehouse than the governor," Mizeur said, talking to Metro Weekly after the press conference.

"For him to be the captain of our team is going to be an incredible boost in momentum for the next session and we're going to get this done."

[Photo: O'Malley (Photo by Yusef Najafi.)]

Republican political operative Roger Stone -- known primarily for his work on opposition research and negative ads -- is joining the advisory board of GOProud, adding another another voice to the group's advisory board that is certain to inflame liberals.

In a release announcing the move, Stone said, "I am a libertarian Republican in the Barry Goldwater mold and I believe deeply in personal freedom, equality and getting government out of the bedroom, which is why I am proud to serve in this capacity."

Stone joins Margaret Hoover, Grover Norquist, Andrew Breitbart, Liz Mair, Chuck Muth, Lisa De Pasquale and Christian Josi on the GOProud Advisory Council.

Christopher Barron, the chairman of GOProud's board of directors, said in the release, "Like GOProud, Roger Stone has always been willing to push the envelope and think outside the box. We look forward to taking full advantage of Roger's innovative mind and unorthodox ideas to help continue to build our organization."

The full release can be found below the jump.

Pentagon officials told Metro Weekly this evening that Defense Secretary Leon Panetta and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, were ready to recommend certification of "Don't Ask, Don't Tell" repeal to the president, possibly as early as Friday, July 22. That news did not, however, stop attorneys for Log Cabin Republicans from hitting back at the government in a pair of court filings this evening in LCR's ongoing challenge to the law.

Earlier in the afternoon, the Wall Street Journal and NBC broke the certification news, with NBC News reporting that senior officials say that Panetta and the Joint Chiefs already have certified that the military is ready to repeal the 1993 law banning out gay, lesbian or bisexual individuals from military service.

Under the Don't Ask, Don't Tell Repeal Act, Mullen and Panetta, as well as President Barack Obama, need to 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." Mullen and Panetta are scheduled to have an afternoon meeting on Friday with Obama in the Oval Office.

The news came hours before lawyers for the Log Cabin Republicans filed their required response to the Department of Justice's supplemental brief that was filed earlier this week in DOJ's attempt to get the appellate court hearing the appeal of LCR's challenge to DADT's constitutionality to keep the 1993 law in effect while the executive branch implements repeal.

Under the act, though, even if the certification is completed on Friday, a 60-day congressional review period follows certification before the law -- 10 U.S.C. 654 -- is removed from the books. If the certification happens on Friday, then, the law would be repealed on Sept. 20.

Until then, though, 10 U.S.C. 654 remains law -- although the military is currently prohibited by the U.S. Court of Appeals for the Ninth Circuit from "investigating, penalizing, or discharging anyone from the military pursuant to [DADT]."

Regardless of the news, LCR pushed forward with the lawsuit, arguing in the court filings this evening that the law remains wholly in effect until repeal is certified and the 60 days have passed and that, even upon repeal, the lawsuit should not be dismissed as moot and the trial court ruling declaring the law unconstitutional should not be vacated.

LCR strongly criticized the government's argument that the DADT Repeal Act, by providing a path for its repeal, "significant[ly] and substantive[ly] change[d]" the law and that it is, therefore, "a different legal provision from the one the district court examined at trial."

To that, White & Case attorney Dan Woods responded for LCR in the first filing tonight, "If the government's argument were accepted, Congress would be free to enact any unconstitutional law it pleased, so long as it provided that the law would expire at some point in the future. The Constitution does not permit such a thing."

Of that argument, Woods explained, "[S]ection 654, as it exists today, is no more 'fundamentally different' from what it was seven years ago when this lawsuit commenced than the line segments in this familiar optical illusion are fundamentally different from each other.

"The government's argument is as much a legal illusion as the above is an optical illusion."

What's more, LCR argues that certification and subsequent repeal do not end matters, noting, that -- in addition to the injunction it sought -- U.S. District Court Judge Virginia Phillips's judgment in the case included a declaration that "DADT infringes the fundamental rights of current and prospective servicemembers and violates their Fifth Amendment due process rights and their First Amendment rights of freedom of speech and petition."

Accordingly, Woods writes, "Because individuals who were discharged under DADT during the 17 years that statute has been in effect continue to this day to sustain identifiable collateral consequences from their unconstitutional discharges, a substantial controversy continues to exist between the parties that will not be removed by repeal and the case will not then be moot."

In the second filing, the lawyers for LCR argue against the government's emergency motion asking the court to reconsider its July 6 order lifting the stay on Phillips's judgment pending the outcome of the government's appeal of that judgment.

Contrary to the DOJ's position expressed on July 14 that the appeals court "lifted the stay based in part on an apparent misunderstanding of the government's position regarding the constitutionality of § 654," LCR argues that the court correctly understood what DOJ is arguing.

"The Court's July 6 order saw through the government's double-speak and correctly recognized that the government had shifted its position to attempt to convert its appeal from a defense of the constitutionality of DADT to a defense of a statute which was not at issue below and which had not been enacted at the time of the judgment," LCR's attorneys write. "The government's position on this motion remains the same: regardless of what it may say it is arguing, it is not defending the constitutionality of DADT."

READ:

• LCR's letter about mootness: LCRvUS-Mootness.pdf
• LCR's brief opposing DOJ's motion to reconsider lifting the stay: LCRvUS-Stay.pdf

Both the Wall Street Journal and NBC News are reporting this evening that top Pentagon officials -- Defense Secretary Leon Panetta and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff -- are set to announce that they are certifying that the military is ready to repeal "Don't Ask, Don't Tell," a requirement before repeal under the Don't Ask, Don't Tell Repeal Act signed into law in Dec 2010.

From the WSJ:

Top defense officials plan to certify Friday that the Pentagon is ready to end the ban on gays serving openly in the military, officials said, a landmark moment after almost two decades of controversy.

From NBC News's Shawna Thomas:

NBC's @JimMiklaszewski/@cmkube: Sr Officials say Panetta/Joint Chiefs have certified military ready to repeal #DADT. Announcement [Friday]

[UPDATE: Read Metro Weekly's full report: "Military Ready for DADT Repeal Certification, But Log Cabin Pushes Forward With Court Challenge"]

[Photos: The Artis family after the July 20, 2011, Senate Judiciary Committee hearing on the Respect for Marriage Act, a bill to repeal the Defense of Marriage Act. (Photo by Chris Geidner.)]

Geraldine and Suzanne Artis of Clinton, Connecticut, are married and keeping busy raising three sons, Geras, Zanagee and Gezani. On Wednesday, July 20, though, the couple was with their sons on the second floor of the Hart Senate Office Building, watching as Chairman Patrick Leahy (D-Vt.) led the first-ever congressional hearing into legislation aimed at ending the Defense of Marriage Act.

Geraldine and Suzanne have been a significant part of marriage equality work for a while now, though, having been involved in two lawsuits brought by the Gay & Lesbian Advocates & Defenders.

Back in 2004, they were two of the plaintiffs in the Connecticut lawsuit that ended with the 2008 Connecticut Supreme Court ruling that led to the start of legal same-sex marriages in the state. Now, they are among the plaintiffs in the federal lawsuit brought in Connecticut challenging the federal definition of marriage contained in Section 3 of DOMA, Pedersen v. Office of Personnel Management.

On July 20, after watching as senators debated the law that they’re challenging in court, Metro Weekly caught up with the couple before they took their children to see the sights in the District.

METRO WEEKLY: Why come down to D.C. to see Congress?

GERALDINE: Well, many reasons, but most important, it's tough on us to carve up our family every year to file taxes. Also, I suffered a debilitating injury which has affected our finances substantially. It will definitely help us save money and help us raise our three sons if we're able to file our taxes together.

MW: When you hear Chuck Grassley say that defending marriage is defending DOMA, what do you think?

SUZANNE: We just know how DOMA's hurting us, and every year having to divide us up is so hurtful. So, that's our experience and we hope that our government will do the right thing and change this, change DOMA – get rid of it.

MW: When Connecticut had marriage equality, you think, "We won!" –

SUZANNE: Exactly.

MW: – and then see that this was still not going to be everything.

SUZANNE: We kind of knew originally that federally – we were worried about federally, but we didn’t know for sure until we did talk to our accountant. And then, we definitely had to file state differently and then we had to file federally. We had to file federally, one of us single and one of us as head of household and actually divide up our kids – decide who’s going to take the kids – which was extremely upsetting, extremely upsetting. Like I said, we’re the Artis family. You have to actually separate.

MW: I think a lot of the times when people even think about tax filing, they think about a couple filing independently, and they're like, "Yeah, I get it, it's a pain, but." I don't think a lot of people think about the fact that, if there are children, you are literally splitting the family every year.

What is your thought coming out the hearing?

GERALDINE: We hope that things change to help same-sex couples federally. There are states that have [same-sex] marriages. If our federal rights can be granted, that would be a major plus and a major victory and we could feel more like a family again. We often call ourselves Team Artis, and we don't like to separate that team.

MW: Our you more hopeful to see resolution of these problems from Congress or from the court case?

SUZANNE: We'll take it either way.

GERALDINE: Exactly.

SUZANNE: We just hope that things work out quickly so that it will benefit us more quickly.

GERALDINE: Fully and wholly. To recognize our union as a married couple who have been committed over 17 years and have three amazing children we share our lives with.

[Photo: Maryland Gov. Martin O'Malley (D) talks with reporters at the close of the 2011 legislative session. (Photo courtesy of Maryland Governor's website.)]

After days of speculation, Maryland Governor Martin O'Malley's (D) office announced today that he will be appearing at the Maryland State House Friday afternoon, July 22, to announce his decision on sponsorship regarding marriage equality legislation during the 2012 legislative session. 

O'Malley is scheduled to speak during a press conference at 2 p.m., in the Governor's Reception Room of the Maryland State House in Annapolis. 

A 2011 marriage equality bill made it past the state's Senate floor but was ultimately shelved during this year's legislative session after House of Delegates Chairman Joseph Vallario (D-Calvert, Prince George's) recommitted the bill back to committee for further discussion.

Patrick Wojahn, chair of the Equality Maryland Foundation, said he's hoping that the governor will announce that he will make marriage equality legislation a priority in 2012.

"It's still a bit of a question mark," Wojahn said about O'Malley's position on how the state should move forward on same-sex marriage legislation in the state and what role he will play in that process. 

"He's calling this press conference for a reason and I think it's promising. I'm very optimistic about what he's going to say, but we can't be certain until it comes out of his mouth."

Wojahn said O'Malley's support will help to convince some of the "reluctant Democrats" in the State Assembly to support marriage equality legislation in 2012.

"I think if the governor is vocally and actively in support of it, then some people who are concerned about opposition to the bill in their districts would be more likely to come out in support of it."

For updates to this story, continue to visit metroweekly.com.

Politico's Abby Phillip reports this afternoon -- and the White House confirmed -- that the President Barack Obama is planning on nominating Michael Fitzgerald, an out gay attorney in Los Angeles, to serve as a district court judge in federal court in California.

[UPDATE @ 5:35 PM: The White House has announced Fitzgerald's nomination. Read the White House release below the jump.]

Politico reports:

The White House plans to announce the nomination of Michael Fitzgerald, a lawyer with Corbin, Fitzgerald and Athey, to the U.S. District Court for the Central District of California. Fitzgerald, 51, a graduate of Harvard University and the University of California Berkley Law School, previously served as an assistant U.S. attorney in California and has been a practicing trial lawyer for 20 years.

A White House official confirmed the report was accurate to Metro Weekly, but the administration has not released an official statement about the expected nomination.

According to Fitzgerald's law firm biography:

From 1988 to 1991, Mike served as an Assistant United States Attorney for the Central District of California. As a federal prosecutor, Mike handled over twenty criminal trials and filed over thirty briefs in the Ninth Circuit. Mike's cases included the successful prosecution of a money-laundering ring masquerading as a legitimate business.

Mike graduated from the School of Law of the University of California at Berkeley (Boalt Hall) in 1985, where he was elected to the Order of the Coif. He served as Managing Editor of the Industrial Relations Law Journal and received the American Jurisprudence Award in Criminal Law. After law school, Mike was a law clerk to the Honorable Irving R. Kaufman of the United States Court of Appeals for the Second Circuit. Mike received his bachelor's degree magna cum laude from Harvard University in 1981.

A search of his political contribution history on OpenSecrets.org shows that Fitzgerald contributed the maximum amount -- $4,600 -- to Obama's 2008 presidential campaign.

The move comes just days after the Senate approved the nomination of J. Paul Oetken to serve as a district court judge in the Southern District of New York.

[Photo: Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) confers with Rep. John Lewis (D-Ga.) before a committee hearing into the Respect for Marriage Act, a bill to repeal the Defense of Marriage Act. Lewis testified at the hearing in support of the RMA. (Photo by Chris Geidner.)]

This morning, the Senate Judiciary Committee is holding a hearing into the Respect for Marriage Act, the bill to repeal the Defense of Marriage Act. A webcast can be found here. Live-tweets here.

Committee Chairman Patrick Leahy (D-Vt.) started off the hearing, welcoming the audience in the packed hearing room in the Hart Senate Office Building to the "first-ever congressional hearing examining a bill to repeal the Defense of Marriage Act." The Obama administration announced its support for the bill on Tuesday, July 19.

Sen. Orrin Hatch (R-Utah) passed by his chance for an opening statement, which led to Sen. Dianne Feinstein (D-Calif.)'s opening statement. Feinstein is the lead sponsor of the Respect for Marriage Act in the Senate.

Although he was delayed, the committee's ranking member, Sen. Chuck Grassley (R-Iowa), eventually got to the hearing and gave a fiery defense of DOMA. Of the name of the repeal bill, the Respect for Marriage Act, Grassley said, "George Orwell would have marveled at the name."

He later referenced Obama's support for "traditional marriage" in the 2008 presidential campaign and, incorrectly, said, "Until yesterday, he was a supporter of DOMA." Although the administration support for a specific bill was new on July 19, Obama had -- including during the 2008 campaign -- supported the repeal of DOMA.

* * *

Reps. John Lewis (D-Ga.), Steve King (R-Iowa) and Jerrold Nadler (D-N.Y.) made up the first panel.

Lewis, a strong opponent of DOMA in 1996, began his remarks by stating that he found it to be "unbelievable" that a hearing like today's is still needed in 2011.

"Every person, man or woman, gay or straight is entitled to the same rights," he said.

Saying that pushing for full marriage equality -- and not solely the repeal of DOMA -- is needed, Lewis evoked history, saying, "Justice delayed is justice denied.

"These are our brothers and sisters, we cannot turn our back on them," the civil-rights leader said, telling the lawmakers, "We are called to lead."

King, on the other hand, strenuously defended DOMA, criticizing the Department of Justice's failure to defend DOMA in court. He also took aim at the unanimous Iowa Supreme Court ruling that held that marriage equality was required in the state, calling it "lawless."

Nadler, in addition to detailing his reasons for supporting the RMA, takes a moment to praise his home state's decision to pass marriage equality.

In his prepared remarks, Nadler noted the dwindling support for DOMA, then said, "DOMA's supporters still claim that the law should survive, and argue primarily that DOMA serves a legitimate interest in protecting the welfare of children by promoting an 'optimal' family structure -- one that consists of a married opposite-sex couple raising their biological children. But there is no credible support for the notion that children are better off with opposite-sex parents or that married gay and lesbian parents do not provide an equally loving, supportive, and wholesome environment."

* * *

The second panel is made up of three people impacted by DOMA -- Ron Wallen of California, Andrew Sorbo of Connecticut and Susan Murray of Vermont -- as well as Focus on the Family vice president Thomas Minnery.

After Minnery claimed that there is a "mountain" of evidence that children are better raised by a mother and father, Sen. Al Franken (D-Minn.) took the chance to pounce on Minnery's representation of a study.

Of the study's results, Franken told Minnery, "It actually doesn't say what you said it says."

Think Progress captures the exchange:

* * *

The final panel is the Human Right Campaign's Joe Solmonese, Freedom to Marry's Evan Wolfson, the Alliance Defense Fund's Austin Nimocks and the Ethic and Public Policy Center's Ed Whelan -- a National Review Online contributer.

At the end, Sen. Chuck Schumer (D-N.Y.) showed up to give a brief statement and conclude the hearing a little past 12:15 p.m.

White House press secretary Jay Carney announced today that President Barack Obama supports the Respect for Marriage Act, a bill to repeal the Defense of Marriage Act that will have its first Senate hearing on July 20. In response to a question from Metro Weekly, Carney said Obama is "proud to support" the bill that "would take DOMA off the books once and for all."

[READ METRO WEEKLY'S FULL REPORT: "Swinging at DOMA"]

Metro Weekly also asked about the current status of Obama's discussions with senior military leadership regarding the certification of "Don't Ask, Don't Tell" repeal, but Carney said he didn't have any new information on that front.

The full exchange:

Metro Weekly: The president has said in the past that he opposes the Defense of Marriage Act, but he is yet to endorse the Respect for Marriage Act, which is the specific piece of legislation --

Carney: Senator [Dianne] Feinstein [(D-Calif.)], yeah.

Metro Weekly: -- aimed to repeal the bill. Tomorrow, the Senate will hold the first hearing into that bill. Is the administration ready to endorse that bill?

Carney: I can tell you that the President has long called for a legislative repeal of the so-called Defense of Marriage Act, which continues to have a real impact on the lives of real people -- our families, friends and neighbors. He is proud to support the Respect for Marriage Act, introduced by Sen. Feinstein and Congressman [Jerrold] Nadler [(D-N.Y.)], which would take DOMA off the books once and for all. This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.

Metro Weekly: A follow-up. In line with that, the administration is also still in court defending "Don't Ask, Don't Tell." When is -- Tomorrow, also will be three weeks since the President said that certification will come in "weeks, not months." Has the President spoken with Secretary Panetta or Adm. Mullen about the certification since he made that statement, and where does it stand?

Carney: I don't know if the President has had those conversations either with Secretary Panetta or his predecessor or Adm. Mullen. What the president said remains the case and our expectation, but I don't have any more information for you on that.

Watch the video of the exchange.

Metro Weekly will have more to come on this development.

[Photo: Image of White House press secretary Jay Carney at the press briefing on June 27, 2011.]

In a letter filed on July 18 with the magistrate judge overseeing the discovery -- or evidentiary -- portion of Edith Windsor's ACLU-led challenge to Section 3 of the Defense of Marriage Act, Windsor's lawyers criticize the Bipartisan Legal Advisory Group's failure to respond to its requests that are part of that process -- and ask the court to compel BLAG to do so.

Noting that BLAG chose to intervene in the case, Windsor's lead attorney, Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, noted to Judge James Francis that "the obligations that come with party status include good faith participation in and compliance with the discovery process."

Despite this, Kaplan writes, BLAG has not responded to hardly any of Windsor's requests. She continues:

In attempting to justify its failure to respond, BLAG has not objected on the ground that plaintiffs requests seek information that is not relevant or is not reasonably calculated to lead to the discovery of admissible evidence. Nor has BLAG identified any substantial burden in responding to plaintiffs requests. Rather, BLAG appears to have simply made the tactical decision that it would prefer not to respond substantively to plaintiffs requests for written discovery. This, however, the Federal Rules of Civil Procedure do not permit.

The ACLU's legislative representative, Ian Thompson, explained that although the discovery process at play in the case was ordinary, BLAG's responses -- "or lack thereof" -- were extraordinary.

Referencing the July 20 hearing scheduled for the Senate Judiciary Committee about the Respect for Marriage Act -- a bill to repeal DOMA -- and describing some of the requests that went unanswered by BLAG, Thompson told Metro Weekly, "It simply defies logic that on the eve of a landmark congressional hearing that will explore how a federal law has led to the discriminatory treatment of tens of thousands of gay and lesbian couples and their families that the House BLAG can't even admit that there has been a long, and very well-documented history of discrimination against lesbians and gay men in this country."

He continued, "Further ... they refuse to admit that lesbians and gay men have been denied jobs and other opportunities in the U.S. as a result of their sexual orientation. Have they never heard of Executive Order 10450, which was signed by President Eisenhower in 1953, and had the result of requiring the termination of all gay people from federal employment?"

The executive order was, however, discussed in the July 1 brief filed by the Department of Justice in federal court employee Karen Golinski's lawsuit seeking equal health insurance benefits to cover her wife.

As Thompson noted, "Particularly in light of the Justice Department’s recent brief in the Golinski case, the House BLAG's admissions response is striking in its refusal to admit to the obvious."

Read: ltr_to_court_7_18_2011.pdf

[Photo: Windsor]

The government this evening continued its attempt to keep the end of the "Don't Ask, Don't Tell" policy in the hands of the executive branch, asking a federal appeals court to keep the policy in place for now and hold off on hearing the appeal of the Log Cabin Republicans v. United States lawsuit -- which is scheduled for Sept. 1 -- in order to allow the "orderly process for repealing" the DADT law to continue under the Don't Ask, Don't Tell Repeal Act.

In today's filing, Assistant Attorney General Tony West reiterates the Department of Justice's July 14 request for the U.S. Court of Appeals for the Ninth Circuit to "reinstate the stay" of U.S. District Court Judge Virginia Phillips's October 2010 injunction of government enforcement of 10 U.S.C. 654 -- the DADT law.

DOJ is asking the court to reconsider reinstating its November 2010 stay, which it had lifted in a July 6 order stating that circumstances had changed significantly since the court had issued the stay. While it considers the July 14 request, the appellate court partially reinstated the stay in a July 15 order that prohibits "investigating, penalizing, or discharging" servicemembers under DADT.

In accordance with the July 15 order, DOJ filed the 10-page supplement today to explain why certain information about discharges and the timeline for the certification required under the repeal act were contained in the July 14 filing but not in an earlier filing opposing LCR's request that the stay be lifted.

Regarding the certification timeline, the government attorneys write:

The government explained in its May 20, 2011, opposition that the process for implementation of the Repeal Act was "well underway," that there was only a "short period of time until the process for repealing the statute is completed," that the preponderance of the armed forces were expected to "have been trained by mid-summer," and that the repeal was expected to become "effective later this year." But at that time the implementation process had not yet advanced to the point where the government could provide the particular details that were contained in its July 14 motion for reconsideration.

As to the information about discharges, DOJ states it didn't view earlier LCR filing as claiming that "significant numbers of Service members had been discharged after enactment of the Repeal Act" and, thus, hadn't focused on discharges in its previous filing. The July 14 filing, however, as well as tonight's filing, focus on the fact that only one servicemember has been discharged since passage of the repeal act.

Tonight's filing notes also that "any other Service members who have been approved for discharge since passage of the Repeal Act are those who, despite being advised about enactment of the Repeal Act, have continued to press for their own separation." This comports with a response Metro Weekly received this past week about the discrepancy between the claim of one discharge and numbers of servicemembers approved for discharge that had previously been reported. In addition to the one discharge, there are at least two other servicemembers who have been approved for separation but have not yet been discharged.

DOJ concluded by asking that the court "reconsider its decision to lift the stay pending appeal, reinstate that stay, remove the case from the oral argument calendar, and permit the orderly process for repealing § 654 to resume."

A response from attorneys for LCR is due by Thursday, July 21, and a final reply from the government is due by the following day, July 22.

Read the filing: GovtSupplement-LCRvUS.pdf

Today, in a 80-13 vote completed at a little past 6:10 p.m., the Senate approved the nomination of out gay attorney J. Paul Oetken to serve as a federal disctrict court judge in the Southern District of New York. The move came with no opposition from Senate Democrats and a majority of the Republicans supporting the nomination as well.

On the federal trial court bench in Manhattan, he will join Judge Deborah Batts, an out lesbian nominated by President Clinton in 1994, and is the first out gay man approved by the Senate for an Article III federal judgeship. Article III judges -- referencing the judicial powers detailed in the Constitution -- have lifetime tenure.

Oetken, nominated in January for the position by President Barack Obama, served in the Clinton administration as both an associate counsel to the White House and, earlier, in the Department of Justice as an attorney-advisor in the Office of Legal Counsel. At the time of his nomination, he was senior vice president and associate general counsel of Cablevision Systems Corporation. He previously was a lawyer at the New York offices of Debevoise & Plimptom LLP.

His nomination was referred to the full Senate on April 7 after a March 16 hearing.

Sen. Charles Schumer (D-N.Y.), who has been supporting the nomination, praised Oetken's background and experience on the Senate floor shortly before the vote, saying "His confirmation will only improve the workings of one of the best and one of the busiest courts in the country."

Of Oetken's place as the first, Schumer said, "At this moment, Paul is not just an excellent candidate, as the first openly gay man to be confirmed as a federal judge and to serve on the federal bench, he will be a symbol of how much we have achieved as a country in just the last few decades."

Before the vote began, Sen. Chuck Grassley (R-Iowa) -- the ranking Republican on the Judiciary Committee -- also announced that he would be voting for Oetken, who was born in Iowa.

When the vote did come, all Democrats voting approved the nomination, with Sen. Kay Hagan (D-N.C.) the sole Democrat not voting. Moreover, a majority of the Senate Republican caucus -- 28 members -- voted to approve the nomination, with 13 Republicans opposing the nomination and six members not voting.

The "no" votes came from Sens. Roy Blunt (R-Mo.), John Boozman (R-Ark.), Thad Cochran (R-Miss.), Mike Crapo (R-Idaho), Jim DeMint (R-S.C.), Orrin Hatch (R-Utah), Kay Bailey Hutchison (R-Texas), Mike Lee (R-Utah), Mitch McConnell (R-Ky.), Jerry Moran (R-Kan.), James Risch (R-Idaho), Pat Roberts (R-Kan.) and Roger Wicker (R-Miss.). The Republicans not voting were Sens. James Inhofe (R-Okla.), Lisa Murkowski (R-Alaska), Rand Paul (R-Ky.), Marco Rubio (R-Fla.), Pat Toomey (R-Pa.) and David Vitter (R-La.).

Human Rights Campaign president Joe Solmonese said in a statement, "We commend the Senate for their historic vote today. Confirmation of Paul Oetken serves as a role model for all LGBT people interested in serving on the judiciary and shows LGBT youth that hard work pays off.

He continued, "The federal bench is greatly lacking LGBT diversity and with thousands of qualified LGBT attorneys in the U.S., there is no reason why the federal bench should not better reflect the composition of our country."

The Victory Fund -- which helps out LGBT candidates win elective office but also leads the Presidential Appointments Project to encourage out LGBT people to seek executive branch nominations, appointments and other jobs -- praised the development

Victory Fund vice president for communications Denis Dison told Metro Weekly, "Our community is still recording its 'firsts,' and this is an important one. The federal judiciary has long been virtually void of openly LGBT judges. We've crossed another threshold this evening."

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

As Metro Weekly reported on July 15, another of Obama's out LGBT nominees, Alison Nathan, saw her nomination reported favorably on July 14 by the Senate Judiciary Committee to the full Senate for a vote. Nathan, nominated in March to serve as a district court judge in the Southern District of New York, previously served as a White House associate counsel.

A third out nominee, Edward DuMont, has not seen his nomination proceed in a similar fashion to the nominations of Oetken or Nathan. Originally nominated by Obama in April 2010 to be an appellate judge in the U.S. Court of Appeals for the Federal Circuit, his nomination languished in the 111th Congress -- despite an American Bar Association rating of "unanimously well qualified." At the end of the session, his nomination was returned to the president, who renominated DuMont on Jan. 5 in the 112th Congress. Although the Judiciary Committee has not even scheduled a hearing for DuMont, a committee spokesperson on July 14 had no further information about the nomination.

[UPDATE: A spokeswoman for Hagan tells Metro Weekly that Kagan supported Oetken's nomination but was delayed from returning to Washington due to flight problems.

Of the nomination, Hagan said in a statement, "I applaud the overwhelming bipartisan support for the nomination of Paul Oetken to the U.S. District Court for the Southern District of New York" -- calling it a "great day for the LGBT community and the nation."

Hagan press secretary Sadie Weiner told Metro Weekly, "On Monday, Senator Hagan was in Charlotte to speak to a camp for high-school aged young women interested in pursuing studies and careers in high technology industries. Her scheduled flight from Charlotte back to Washington was delayed several times causing her to miss the Senate vote on Judge Oetken’s nomination."]

In advance of this week's Senate Judiciary Committee hearing scheduled for 10 a.m. Wednesday, July 20, by Sen. Patrick Leahy (D-Vt.) on the Respect for Marriage Act -- the bill to repeal the Defense of Marriage Act -- the Republican-chosen witnesses were added to the hearing list today. 

Thomas Minnery, the senior vice president for public policy at Focus on the Family in Colorado Springs, Colo., will be testifying in the first panel, alongside the three people chosen to testify by the Democrats: Ron Wallen of Indio, Calif.; Andrew Sorbo of Cheshire, Conn.; and Susan M. Murray of Ferrisburgh, Vt.

In the second panel, Human Rights Campaign president Joe Solmonese and Freedom to Marry president Evan Wolfson will be joined by two marriage equality opponents. David Austin R. Nimocks is the senior legal counsel at the Alliance Defense Fund, which has been the driving legal force behind most anti-LGBT litigation in recent years, Edward Whelan is the president or the Ethics and Public Policy Center in Washington and testified in the House Judiciary Committee at its DOMA hearing earlier this year.

[Photo: The contingent of active-duty servicemembers and veterans line up to march in the San Diego Pride Parade on Saturday, July 16. (Photo by Tony Lindsey.)]

The third contingent in today's San Diego Pride Parade would have been unheard of in the recent past. Yet, this year, the presence of a parade contingent of active-duty servicemembers and veterans was celebrated -- and received some of the biggest cheers from the bystanders of the mile-long march through the Hillcrest neighborhood in San Diego.

The contingent, which organizers estimated ahead of time would be made up overwhelmingly of active-duty servicemembers, is thought to be the first of its kind in the country. Although the "Don't Ask, Don't Tell" law remains on the books, an injunction from a federal appeals court prevents the military from discharging servicemembers under DADT currently and government officials say the end of the law under the Don't Ask, Don't Tell Repeal Act is close.

Sean Sala, the 26-year-old veteran who organized the contingent -- thought to be the first of its kind in the country -- talked with Metro Weekly and LGBT POV in a call arranged by gay journalist Rex Wockner briefly before the parade stepped off. Sala said he was excited by the contingent's presence, which numbered about 100 people for much of the set-up time but swelled to about 350 people in the minutes before the parade began.

Sala said he served in the Navy as active duty for six years in San Diego and was stationed on the USS Dubuque. Speaking with the San Diego Union-Tribune earlier this week, Sala said that about the number who ended up marching had signed up ahead of time, with 70 percent of those being active duty.

Wearing mainly gray Navy T-shirts and green Marines shirts, the parade took off with about 150 people representing each of those branches. Less heavily represented in the San Diego area are the other service branches, who nonetheless each had some representation in the parade -- with just less than 10 people affiliating with the Air Force and a couple each with the Army and Coast Guard.

The parade came less than a day after the U.S. Court of Appeals for the Ninth Circuit kept in place the portion of a July 6 order that has stopped the military from "investigating, penalizing, or discharging" any servicemembers under the "Don't Ask, Don't Tell" policy. Pentagon officials and President Barack Obama have said that they expect certification under the Don't Ask, Don't Tell Repeal Act -- after which the 1993 law would be repealed following a 60-day congressional review period -- to happen in the coming weeks.

Pride organizers claim that San Diego Pride is the fifth largest parade and festival in the country, with an estimated attendance of 150,000 people.

With Rex Wockner reporting from San Diego.

[Photo: The front of the contingent of active-duty servicemembers and veterans marching in the San Diego Pride Parade on Saturday, July 16. (Photo by Rex Wockner.)]

Although "temporarily reinstating" most of its stay of the injunction in the Log Cabin Republicans v. United States case tonight, the U.S. Court of Appeals for the Ninth Circuit kept in place the part of the injunction that bars the military from "investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

Responding to dueling requests from the Department of Justice and attorneys for the Log Cabin Republicans in the LCR v. United States challenge to "Don't Ask, Don't Tell," the appellate court in San Francisco this evening partially granted a request from the government to issue a temporary stay of the injunction of DADT put back in place by the Ninth Circuit since July 6 -- with a big caveat that keeps discharges from moving forward.

The move puts the 1993 law banning military service back into effect until the court can make a more complete determination about whether to reconsider the July 6 order -- while continuing to prevent the military from "investigating, penalizing, or discharging anyone from the military pursuant to the Don't Ask, Don't Tell policy."

The order from Chief Judge Alex Kozinski and Judges Kim Wardlaw and Richard Paez notes the additional information provided to the court in the government's most recent filing -- specifically, "the declaration of Major General Steven A. Hummer, Chief of Staff of the Repeal Implementation Team of the Office of the Undersecretary of Defense for Personnel and Readiness; the representation that only one servicemember has been discharged under 10 U.S.C. § 654 since the passage of the Repeal Act; the representation that the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands have recently submitted their written advice regarding the status of their preparation for repeal and ability to satisfy the certification standards set by Congress; and the representation that repeal certification will be presented to the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff in a matter of weeks, by the end of July or early in August."

In order to consider the impact of what it terms these "previously undisclosed facts," the court granted the temporary stay and put back in place the stay originally entered by the Ninth Circuit on November 1, 2010, "in all respects except one. The district court's judgment shall continue in effect insofar as it enjoins appellants from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy."

Additionally, the court set a quick briefing schedule for supplementary information so that it can consider the motion to reconsider its order lifting the stay on July 6:

No later than 5:00 p.m. PDT on July 18, 2011, appellants shall supplement their motion for reconsideration to address why they did not present in their May 20, 2011, opposition to the motion to lift the stay the detailed information now presented in the motion for reconsideration. Appellee may file an opposition to the motion for reconsideration by 5:00 p.m. PDT on July 21, 2011. Appellants may file a reply in support of the motion by 12:00 p.m. PDT on July 22, 2011.

Read the order:AdminStay-LCRvUS.pdf

Responding to the two filings on Thursday evening, July 14, by the Department of Justice in the Log Cabin Republicans v. United States challenge to "Don't Ask, Don't Tell" -- filings that asked for the stay on the injunction of DADT enforcement to be reinstated by "close of business" today -- lawyers for LCR today filed a motion before the U.S. Court of Appeals for the Ninth Circuit arguing strongly that the extraordinary request should be denied.

Writing that the "on-again, off-again status of the District Court's injunction benefits no-one and plays havoc with the constitutional rights of American servicemembers," LCR lawyers today write that the government's request should be denied because "no reason is given" for the request for the temporary, administrative stay that the government is seeking while its larger request that the court reconsider its July 6 decision to lift the stay is decided. Additionally, LCR lawyers write, "the underlying motion for reconsideration will likely be denied."

LCR states that "[t]he five-page declaration of Major General Steven Hummer, signed yesterday, is conspicuously silent as to any actual harm to the military that has occurred since July 6, as opposed to speculative harm in the future."

Stating that the July 14 filings "merely restate[] the same arguments that [the DOJ and DOD] have made" previously and that, therefore, the motion to reconsider the lifting of the stay is likely to be denied, LCR argues that an administrative stay would then result in more "on-again, off-again" changes after the motion to reconsider is decided. "The parties, and thousands of gay and lesbian servicemembers now serving honorably but in silence," LCR's attorneys write, "would be left whipsawed, wondering from day to day what the current state of their constitutional rights might be."

In concluding, the lawyers write, "American servicemembers' constitutional rights are not a ping-pong ball to be paddled back and forth while this appeal is pending."

As noted, the government has requested that the Ninth Circuit take action on its request for an administrative stay by the close of business today.

[UPDATE @ 8:10P EASTERN: Close of business came and went with no response from the Ninth Circuit.]

[UPDATE @ 10:45P EASTERN: Ninth Circuit issued an order. READ ABOUT IT HERE.]

Read: Response-LCRvUS.pdf

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In related news that is addressed somewhat in the LCR filing but for which Metro Weekly also obtained an explanation, Pentagon spokeswoman Eileen Lainez explained why Marine Corps Major Gen. Steven Hummer's declaration in Thursday's filing stated that there only had been one DADT discharge since the signing of the Don't Ask, Don't Tell Repeal Act. This appeared to contradict previous military statements that three or four such separations had been approved.

"As confirmed to you previously, SECAF approved four AF separations," she wrote. "However, only one -- [Air Force secretary] approval date of April 29 -- has separated. The other three were in various stages of the separation process when the stay was lifted, and so those separation actions have been suspended."

[Photo: Alison Nathan, Edward DuMont and J. Paul Oetken -- all out LGBT attorneys -- have been nominated for federal judgeships by President Obama.]

For President Barack Obama's out LGBT judicial nominees, two of the three -- both of whom formerly worked in the White House under a Democratic administration -- have seen their nominations move forward with relative ease and speed. The third -- the first out gay appellate judicial nominee in the country's history -- has not.

On Thursday, July 14, the Senate Judiciary Committee favorably reported the nominations of several judicial nominees to the full Senate for a vote, including out lesbian attorney Alison Nathan, nominated in March to serve as a district court judge in the Southern District of New York.

Nathan, who previously served as a White House associate counsel, was nominated for the job by her former boss, President Barack Obama, and the Judiciary Committee held a hearing on her nomination on June 8.

Another of Obama's out judicial nominees, J. Paul Oetken, is set to have his nomination for a district court judgeship in the same district considered by the full Senate on Monday, Jul 18. According to the Senate's announced schedule for the day, the Senate is due to convene at 2 p.m. to conduct business, including consideration of H.R.2055, the Military Construction and Veterans Affairs and Related Agencies Appropriations bill, before proceeding to consider Oetken's nomination to the Southern District of New York.

[UPDATE @ 2:30 PM MONDAY, JULY 18: The Senate is expected to begin the executive session required to consider Oetken's nomination at 5 p.m. The Senate vote is estimated to happen at 5:30 p.m. Watch the Senate live on C-SPAN.]

Oetken, nominated in January, would be the first out gay male judge approved for Senate confirmation. His nomination was referred to the full Senate on April 7 after a March 16 hearing.

Retired U.S. District Judge Vaughn Walker, who presided over the Proposition 8 trial in 2010, told reporters earlier this year -- after his retirement -- that he is gay and is in a long-term relationship. U.S. District Court Judge Deborah Batts -- serving in the Southern District of New York -- was the first out LGBT federal judge in the country. A black lesbian, Batts was nominated by President Clinton and confirmed by the U.S. Senate in 1994.

Like Nathan, Oetken is a former White House associate counsel, although he had served in the role in the '90s in the Clinton administration. At the time of his nomination, he was senior vice president and associate general counsel of Cablevision Systems Corporation.

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

The third out nominee, Edward DuMont, has not seen his nomination proceed in a similar fashion to the nominations of Oetken or Nathan. Originally nominated by Obama in April 2010 to be an appellate judge in the U.S. Court of Appeals for the Federal Circuit, his nomination languished in the 111th Congress -- despite an American Bar Association rating of "unanimously well qualified" and a clerkship for Judge Richard Posner of the Seventh Circuit Court of Appeals. At the end of the session, his nomination was returned to the president, who renominated DuMont on Jan. 5 in the 112th Congress.

The Judiciary Committee has not scheduled a hearing for DuMont, and a committee spokesperson on July 14 had no further information about the nomination.

Following months of turbulence at Equality Maryland, from board member resignations to the departure of the organization's executive director in April, the organization announced today that it is taking one of its planned steps to help stabilize and reinvigorate the group.

Equality Maryland announced it is accepting applications through July 31 for volunteers to join the organization's board of directors. According to a press release issued July 15, Sen. Rich Madaleno (D-Montgomery) and Erin Leveton, a past Equality Maryland board president and former senior managing attorney at Whitman-Walker Health, will chair the Nominations Committee for the search process. Patrick Wojahn, chair of the Equality Maryland Foundation board, will serve as the liaison with the current board of directors. 

"Increasing the board of Equality Maryland is a critical step towards further stabilizing this organization," Wojahn says in the release. "The people on this committee bring a fresh perspective and a variety of backgrounds to the selection process. I'm confident that their leadership will ensure Equality Maryland brings on highly qualified new board members to help govern the organization."

Other members of the committee are: Lori Hollander, Kathleen Darden, Del. Mary Washington (D-Baltimore City), MaryAnne Arnow, Mike Meller and Marvin Masterson. 

Part of the organization's six-months strategic plan to stabilize the operations, today's news followed the organization's April vote to remove its executive director and later announcement that the organization was in the midst of a financial crisis.

Equality Maryland is asking for people who have experience in "nonprofit governance, fundraising, public relations, political advocacy, personnel management and financial management." From the press release: 

Diversity of experience, opinion, background, geography and engagement will be considered and valued when developing the final slate of candidates. All first year board members must commit to attending meetings in Baltimore every two to three months, making a personally significant financial contribution to the organization, and with the support of board colleagues and staff, securing $3,000 through solicitation of others or personal giving.

To apply for consideration by the committee, interested parties should read the Board Expectations document and submit a completed Board Application, including a resume and three references. Questions and completed application packets may be directed to nominations@equalitymaryland.org.

[Photo: Madaleno]

The Department of Justice filed a motion in the U.S. Court of Appeals for the Ninth Ciruit in the Log Cabin Republicans v. United States case today, asking the court for "emergency" reconsideration of its July 6 decision to lift the stay of the worldwide injunction of the "Don't Ask, Don't Tell" law -- a motion that asks for the stay to be put back in place by "close of business" on Friday, July 15.

Additionally, not waiting until its July 21 deadline to respond to a later order from the appellate court, the government submitted a second filing, responding to the Ninth Circuit's claim that "it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654" -- the DADT law. DOJ countered today that "it has fully defended, and continues to defend, the constitutionality" of DADT "as it exists following enactment of the Don't Ask, Don't Tell Repeal Act of 2010." DOJ makes the argument in a letter that states that -- after the repeal act was signed into law -- Section 654 became a "transitional provision."

The government argues that "§ 654 remains in force by operation of § 2(c) of the Repeal Act, which provides that § 654 'shall remain in effect until such time that all of the requirements and certifications required by' the Repeal Act 'are met.'" Because of this provision in the repeal act, the government argues, "§ 654 is now a transitional provision that remains in force only until the Executive Branch completes the repeal process."

The chief of staff of the Repeal Implementation Team at the Department of Defense -- Marine Corps Major General Steven A. Hummer -- detailed, specifically, where the repeal process stands in a declaration submitted with the emergency motion asking for the stay to be reinstated.

Hummer states, "At this time, the President, Secretary of Defense, and Chairman of the Joint Chiefs of Staff have not yet certified that repeal is consistent with these standards, though it is anticipated that certification will be presented for their decision in a matter of weeks, by the end of July or early in August. Just last week, the Secretaries of the Military Departments, Chiefs of the Military Services, and Commanders of the Combatant Commands submitted their written advice regarding the status of their preparations for repeal and ability to satisfy the certification standards set by Congress."

On Jan. 10, however, in responding to the government's initial appeal to the Ninth Circuit, lawyers for LCR argued that, regardless of the reasoning, Section 654 -- DADT -- remained in effect, writing, "During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality. It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises."

And, as has been seen, DADT does remain in effect, with administrative separation board hearings proceeding and discharges continuing under DADT. Although the emergency order states there only has been one DADT discharge since the passage of the repeal act, the Air Force has confirmed three discharges and one resignation related to 10 U.S.C. 654 in 2011.

In its request for emergency reconsideration of the decision to lift the stay, DOJ also asks for "a temporary administrative stay of the injunction" while considering the emergency motion. DOJ is asking for quick action on that request. "We respectfully request that the Court act on this request for an administrative stay by the close of business tomorrow, July 15, 2011," the lawyers wrote to the court.

The government's argument for reinstating the stay is the "real and immediate" "harm" that would result from the July 6 order. The government states, "The panel's order, which wrests authority for the transition [to open service] from the military and places it in the hands of a single district judge, gives no weight to Congress's judgments about the process that is needed to make this transition maximally effective. That step is particularly unjustified at this late stage of the process, in light of the enormous progress the military has made in the months since passage of the Repeal Act, and how close it is to a certification decision."

Additionally, DOJ -- referencing the other filing's discussion of whether DOJ continues to defend the constitutionality of the law -- argues, "the panel lifted the stay based in part on an apparent misunderstanding of the government's position regarding the constitutionality of § 654."

Finally, DOJ argues that the panel "misapprehended the significance for this case of the position the government has taken on the constitutionality of the Defense of Marriage Act, which, as the very filing the panel cited makes clear, presents very different issues from the question of military policy at issue here." In its brief, DOJ cites Rostker v. Goldberg -- the 1981 Supreme Court case allowing the government to maintain a male-only draft and, thus, discriminate on the basis of sex in the military setting in certain ways under certain circumstances.

In sum, the government argues that lifting the stay unjustifiably takes the authority for repealing DADT away from the executive branch and it does so, at least in part, because of confusion by the Ninth Circuit panel regarding the DOJ's view of whether DADT is constitutional after the passage of the repeal act and regarding the application of the DOJ's DOMA decisions to military laws like DADT.

LCR executive director R. Clarke Cooper called today's move "shameful" and said in a statement, "Let me be clear -- the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the Ninth Circuit was clear that there is no justification for continuing the violation of servicemembers' constitutional rights."

One of the plaintiffs in the lawsuit, Servicemembers United executive director Alex Nicholson, said in a statement provided to Metro Weekly, "The Administration's response to this latest development in the Log Cabin Republicans lawsuit is unfathomable and confusing. 'Don't Ask, Don't Tell' should be completely dead by now."

He continued, pointing to the certification process required by the president, defense secretary and chairman of the Joint Chiefs of Staff under the repeal act, writing, "Certification of legislative repeal has now been dragged out beyond a reasonable time frame, so the court stepped back in to get the job done. The President should just let this law die."

Read:

• Emergency Motion: EmergencyMotion-LCRvUS.pdf
• Merits Letter: MeritsLetter-LCRvUS.pdf

[Photo: Major General Hummer (Photo from United States Marine Corps website.)]

[This post was updated through 10:20 p.m.]

In today's White House briefing both Metro Weekly and Kerry Eleveld with Equality Matters got in questions about LGBT issues, with Eleveld following up on her column regarding Brian Bond's departure from the White House and Metro Weekly asking about this past week's developments regarding DOJ's new policy not to oppose joint bankruptcy filings by same-sex married couples. Neither question elicited much of a response from White House press secretary Jay Carney.

* * *

* * *

From the transcript:

     Q    And on just a completely unrelated subject, it’s been reported that Brian Bond, who was in charge of constituency relations for lesbian, gay, bisexual, and transgender issues, is leaving the White House for the DNC.  Currently, there’s no senior LGBT advisor to the President on this issue, arguably one of the biggest civil rights questions of his presidency.  Does he -- does the President plan to appoint someone to advise him on these issues going forward? 

     MR. CARNEY:  I don’t have any personnel announcements for you.  I think that his record on these issues is something he is proud of and he gets advice from a lot of quarters.  I don’t have an announcement for you on that. 

     Chris. 

     Q    On July 7th, DOJ announced it would no longer oppose married, same-sex couples who are seeking to file joint bankruptcy petitions.  And that was a move that DOJ had opposed in the past, basing it on DOMA.  You in the briefing room, however, in the past have said that the President doesn’t have the ability to waive [sic] a magic wand and change policy. 

     MR. CARNEY:  I wish he did.

     Q    And that was with regards to immigration situation and same-sex couples seeking equal treatment.  Can you explain what the difference between those situations is, and also, whether or not the President supports DOJ’s decision to allow same-sex couples to file join bankruptcy petitions?

     MR. CARNEY:  Chris, I honestly haven’t talked about this with him in terms of that specific decision by DOJ, so I’d have to refer you to that.  I think the overall principle that he doesn’t have a magic wand -- although some of us wish he did sometimes, maybe this week in particular -- to make things happen is just a statement of fact.  And there are processes that involve legal analysis and decisions that obviously are handled over at the Department of Justice.  So I just don’t have any more information for you on that. 

     Q    But the President has said that until there are final court rulings that he expects DOMA to be enforced.  Is this situation -- does the President feel that this is enforcing DOMA by allowing same-sex couples to file joint bankruptcy petitions?

     MR. CARNEY:  I haven’t had that conversation with him.  I mean, I can take that question for you.

[Image: Carney at White House press briefing on June 27, 2011.]

The Gay & Lesbian Alliance Against Defamation (GLAAD) today submitted a letter to the Federal Communications Commission (FCC) withdrawing its support for AT&T's proposed merger with T-Mobile. In the letter, GLAAD also stated its strong support for, as the organization put it in a news release, "the tenets of net neutrality."

Mike Thompson, GLAAD's acting president, filed today's letter after the organization received extensive criticism for the move endorsing the merger, as well as a series of letters involving the FCC's consideration of net neutrality rules. The move resulted in then-President Jarrett Barrios resigning from the organization and Thompson stepping in as acting president.

Thompson writes that GLAAD "received many expressions of concern about our May 31st letter [supporting the merger] after its filing. We have taken those concerns under consideration, and have over the last several weeks engaged in a much more rigorous and consultative examination of the relative benefits and drawbacks to AT&T's application than we undertook in advance of the filing of our initial letter. We concluded at the end of this reconsideration process that GLAAD should return to a neutral position regarding AT&T's merger application."

In a statement announcing the changed position, Thompson went further, saying that "the explanation used to support this particular merger was not sufficiently consistent with GLAAD's work to advocate for positive and culture-changing LGBT stories and images in the media."

Tony Varona, a board member of GLAAD and a strong supporter of net neutrality principles, praised the decision.

Varona -- the chair of the GLAAD board's public policy committee and a professor at American University's Washington College of Law -- wrote in a statement provided to Metro Weekly, "Having written and spoken strongly in favor of net neutrality in my work as a communications law scholar, I am confident that Mike made the right decision both in withdrawing GLAAD's endorsement of the AT&T merger application and in affirming our support of general net neutrality principles."

Expanding on the issues, he noted, "We owe the success of much of the LGBT movement's and GLAAD's own work to a neutral and nondiscriminatory Internet – one that has disallowed the creation of premium-priced 'fast lanes' for certain content and services, relegating to a low-quality 'slow lane' not-for-profit content and services that are vital to our community's survival and quest for full equality."

The full GLAAD letter to the FCC is below the jump.

Since mid-February, the government's approach to laws or government practices that classify people based on their sexual orientation has changed significantly. The impact of that change is no more clear than is seen by the U.S. Court of Appeals for the Ninth Circuit's response to a government brief -- about jury selection -- filed with the court on Feb. 17.

Under the Equal Protection Clause of the 14th Amendment -- applied to the federal government through the Fifth Amendment -- all laws that classify people into groups receive a level of scrutiny: rational basis, which is the lowest form of scrutiny; heightened scrutiny; or strict scrutiny.

The U.S. Supreme Court has not made a determination about the level of scrutiny to apply to sexual orientation classifications, even in the two cases in which it struck down anti-LGBT laws -- Romer v. Evans and Lawrence v. Texas. On Feb. 23, though, Attorney General Eric Holder detailed in a six-page letter his and President Barack Obama's determination that some level of heightened scrutiny should apply.

Holder sent the letter to House Speaker John Boehner (R-Ohio), detailing his and the president's decision -- in two challenges to the federal definition of marriage contained in the Defense of Marriage Act -- that heightened scrutiny should apply to classifications based on sexual orientation and that, under that heightened scrutiny, that portion of DOMA -- Section 3 -- should be found to be unconstitutional.

The decision about heightened scrutiny quickly spread to other DOMA challenges; was cited by the lawyers seeking to have California's Proposition 8 struck down as unconstitutional; was raised as the justification for including sexual orientation -- and gender identity -- in a DOJ investigation into New Orleans police practices; has impacted immigration cases; led to an unprecedented filing by the government on July 1 in a health benefits case brought by Karen Golinski; changed the DOJ's policy for approaching married gay couples' bankruptcy filings; and, most recently, was referenced by the Ninth Circuit in the ongoing appeal of the Log Cabin Republicans v. United States challenge to "Don't Ask, Don't Tell."

Although broadly impacting a wide swath of cases involving LGBT people, the cases have been within the range of cases that have been a traditional part of LGBT organizations' efforts at equality. In an order filed by the Ninth Circuit on the same day it lifted the stay on U.S. District Judge Virginia Phillips's worldwide injunction halting enforcement of DADT, however, the court also issued an order questioning whether the Feb. 23 decision would have an impact on the government's view about jury composition.

Questions about jury composition -- more specifically, removal of potential jurors through what are called "peremptory challenges" -- have been the subject of civil rights litigation in the past. The U.S. Supreme Court held in 1986 -- in the case of Batson v. Kentucky -- that a prosecutor could not use his peremptory challenges to remove potential jurors from cases based solely on their race. The ruling has since been extended to other classifications, including sex and national origin. A defendant who questions the removal of a potential juror as being based on a prohibited basis can make a "Batson motion" to challenge the prosecutor's reason for removing the potential juror.

Daniel Osazuwa, who was charged with assaulting a prison guard, made a Batson motion after the government used a peremptory challenge to strike a lesbian juror -- which led to the government's response.

In a filing dated Feb. 15 (but that the Ninth Circuit states was filed on Feb. 17), the government opposed Osazuwa's motion on several grounds. Among the reasons given, however, was one that "Binding Precedent Precludes Extending Batson to Sexual Orientation."

Although several reasons were given why Batson should not be extended to include sexual orientation, the primary reason given in the brief signed by Assistant U.S. Attorney Mark R. Yohalem was that "[t]he Supreme Court has expressly held that '[p]arties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review." The government went on to argue that both the Ninth Circuit and Supreme Court "have held that rational basis review applies to classifications based on sexual orientation." Under that precedent, the brief concluded, "defendant cannot assert a Batson claim based on sexual orientation."

On July 6, looking at the changed landscape -- and showing that even in the absence of action by attorneys, courts are noticing that new landscape -- the Ninth Circuit issued an order restating the position argued by the government against Osazuwa's Batson motion in February, noting the government's July 1 filing in Golinski's case and asking for an explanation of the difference.

The court order, signed by the clerk of the Ninth Circuit, stated:

In its answering brief in this case, filed on February 17, 2011, the Government argued that this court was bound by precedents holding that classifications on the basis of sexual orientation are subject only to rational-basis review under the Equal Protection Clause. On July 1, 2011, however, the Government filed a brief before the U.S. District Court for the Northern District of California, arguing that "heightened scrutiny, rather than rational basis review, is the appropriate standard of review for classifications based on sexual orientation."

The court then ordered:

In light of this development, the Government is directed to file a supplemental brief of no longer than ten pages, addressing whether it adheres to the position that classifications on the basis of sexual orientation do not warrant heightened scrutiny under the Equal Protection Clause.

A response from the government -- and a sign of the breadth of the impact of the Feb. 23 decision by Obama and Holder about heightened scrutiny's application to sexual orientation classifications -- is due by July 20.

READ:

• Government's February brief: Dkt #26 USA's Answering Brief.pdf 
• Ninth Circuit order: U.S. v. Osazuwa Ninth Circuit Order 7-6-11.pdf

Equal rights organizations are joining forces today at 11 a.m. at Baltimore City Hall to launch a coalition that seeks to secure marriage equality in Maryland during the 2012 legislative session. The organizations comprising Marylanders for Marriage Equality are Equality Maryland, Progressive Maryland, the American Civil Liberties Union, Communication Workers of America, Service Employees International Union, the Human Rights Campaign, and Freedom to Marry.

According to a press release issued by HRC, "press conference will include coalition members, state and local elected officials, Maryland couples who are currently being denied access to marriage equality and clergy leaders who support the freedom to marry."

During the 2011 legislative session, Equality Maryland was able to get a marriage bill past the Senate floor, but it ultimately died on the House of Delegates floor after the bill was recommitted, by the House Chairman Joseph Vallario (D-Calvert, Prince George's), back to committee for further discussion. News of the press conference comes after several months of difficulties for Equality Maryland. In April the organization's board voted to remove its executive director. At the end of June Equality Maryland unveiled its six-month strategic plan to stabilize the organization after announcing that the organization was in the midst of a financial crisis.

[UPDATE: According to a press release issued by Progressive Maryland, a statewide coalition of representatives from over 50 religious, community, and labor organizations will join Baltimore Mayor Stephanie Rawlings-Blake and other elected officials at the event. From the release:

“The basic thread of any family is love, and Maryland should honor that love and the commitment of the thousands of gay and lesbian families who are seeking what we all seek: to protect our families,” said Progressive Maryland Executive Director Rion Dennis.

“We’re proud to be working with such a broad and diverse coalition of groups to secure marriage equality in Maryland” said Lisa Polyak, chair of Equality Maryland.  

“While there are many social justice issues my congregants face, I feel compelled to include this issue, the issue of civil marriage equality, as one we work to tackle from a faith perspective,” said Rev. Denis Wiley of Covenant Baptist Church.Wiley, a Prince George’s County resident, draws a significant number of residents from Prince George’s Country to his church. “Some of the strongest families I’ve seen in my congregation are families headed by gay and lesbian couples. They should be able to go to city hall and get a marriage license.”]

For further coverage, continue to visit metroweekly.com.

In an order from the clerk of the U.S. Court of Appeals for the Ninth Circuit today, the court followed up on the three-judge panel's order from this past week in the Log Cabin Republicans v. United States case by questioning who -- if anyone -- is left actually defending the "Don't Ask, Don't Tell" law -- 10 U.S.C. 654.

"After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654," the order begins.

The brief order goes on to note that the government only defended the constitutionality of the Don't Ask, Don't Tell Repeal Act -- and not the DADT law at issue in the case -- and states, "No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed."

Noting that the government may choose not to defend laws -- and citing the Feb. 23 letter from the attorney general to House Speaker John Boehner (R-Ohio) detailing the administration's decision not to defend Section 3 of the Defense of Marriage Act -- the order states:

If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae [people or groups who are not parties to litigation but who present the court with their views on the litigation] to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g) [which allows the court to permit those filing such amicus briefs to participate in argument].

The court then goes on to order the government to "advise the court whether it intends to submit a report to Congress" detailing a decision not to defend DADT as it did in February regarding Section 3 of DOMA and, if so, "to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding."

Additionally, the court asks the parties to explain "why this case should not be dismissed as moot," either now or upon certification of the Don't Ask, Don't Tell Repeal Act.

[UPDATE @ 4:55 PM: In a statement, LCR executive director Clarke Cooper said, "The ruling in Log Cabin Republicans v. United States set an important precedent by showing that discrimination against gay and lesbian Americans is unconstitutional." U.S. District Court Judge Virginia Phillips's decision at the trial court level in the case, by finding a constitutional violation of equal protection in DADT, creates a nondiscrimination obligation that LCR officials and their attorney have said they want to protect going forward since the DADT Repeal Act does not contain a nondiscrimination provision.

LCR's attorney, Dan Woods, said as much, telling the Washington Blade, "We're happy to brief this again and we don't think the case is going to be moot, we don't think it should be dismissed because, among other things, there's still this talk about repealing the repeal [in Congress]. There's a bill pending to repeal the repeal. That should make it clear that this case shouldn't be dismissed."

LCR deputy executive director Christian Berle put it more directly, telling Metro Weekly of the trial court ruling, "We're fully committed to the precedent in this ruling because it protects, in perpetuity, the constitutional rights of servicememebers."]

Responses are due to the court within 10 days.

Read the order: 112.pdf

Today, in a bankruptcy court filing in Los Angeles, lawyers for a married gay couple seeking to file a joint bankruptcy petition claimed victory, following several days of moves by the government suggesting -- and then announcing -- that it would no longer challenge such filings in court.

The move appears to be the first time that the federal government is, as a matter of policy, recognizing same-sex marriages for purposes of applying federal law. Before this week, married same-sex couples' joint bankruptcy petitions were opposed by the government as impermissible under the Defense of Marriage Act.

Notably, the move has come without any apparent opposition from House Republican leaders, whose 3-2 majority on the House Bipartisan Legal Advisory Group (BLAG) has led the Republicans to defend DOMA in other court challenges.

The bankruptcy petition of Gene Douglas Balas and Carlos Morales, the couple at issue in the Los Angeles bankruptcy case, received nationwide attention in June when U.S. Bankruptcy Court Judge Thomas B. Donovan issued his decision -- also signed by 19 of his fellow bankruptcy court judges in the Central District of California -- finding that DOMA unconstitutionally prohibited joint bankruptcy filings by same-sex couples who were legally married under state law.

The U.S. Trustee -- a government position established to serve as a watchdog over the bankruptcy process -- had initially filed a notice that it would be appealing the ruling in order to let the BLAG intervene in the case if it wished to do so. The lawyers for Balas and Morales responded by seeking certification of the appeal directly to the U.S. Court of Appeals for the Ninth Circuit.

On July 6, however, the U.S. Trustee told the bankruptcy court that it no longer wished to appeal the case because neither DOJ nor the BLAG planned to defend DOMA on appeal in the case. The U.S. Trustee noted in the filing that Balas and Morales opposed the attempt to withdraw the appeal.

On July 7, a Department of Justice spokeswoman told Metro Weekly that DOJ "will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law."

This afternoon, lawyers for Balas and Morales told the Los Angeles bankruptcy court that they no longer opposed the dismissal of the case because of the "nationwide effect" given to their decision by the DOJ announcement.

Explaining their initial opposition to the U.S. Trustee's motion to withdraw its appeal, the lawyers write:

As the Debtors explained to the United States Trustee in declining to so stipulate, absent indication that dismissal of the appeal in this particular bankruptcy case was part of a larger shift in policy by which no further challenges would be brought under DOMA to joint bankruptcy cases filed by legally married same-sex couples, the Debtors believed that the appeal should proceed so that definitive appellate guidance could be provided.

Then quoting extensively from Metro Weekly's July 7 report about DOJ's decision not to oppose such filings any longer and noting additional bankruptcy cases in which the U.S. Trustee is seeking to withdraw its opposition -- up to and including a filing by the U.S. Trustee today in a case in the Southern District of New York -- the lawyers conclude:

In view of the Department of Justice's decision to no longer seek dismissal of joint bankruptcy cases filed by lawfully married same-sex couples anywhere in the country (a decision apparently prompted by BLAG's repeated refusal to appear and defend DOMA in the bankruptcy context), this Court’s landmark June 13, 2011 opinion will now be given nationwide effect. Accordingly, the Debtors are pleased to report that they have no objection to the dismissal of the United States Trustee's appeal.

The bankruptcy judge still needs to approve the U.S. Trustee's June 6 motion to withdraw its appeal.

Read the filing: 2011-07-08 Response to Motion to Dismiss.pdf

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The Pentagon has stopped all enforcement of "Don't Ask, Don't Tell" in a memorandum issued to military branch secretaries dated today, following a July 6 order from the U.S. Court of Appeals for the Ninth Circuit reinstating an injunction ordering the military to do so.

According to a memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, "On July 6, 2011, a federal appellate court reinstated the injunction, originally issued on October 12,2010, ordering the Department of Defense to cease enforcement of the "Don't Ask, Don't Tell" law (10 U.S.c. § 654) and implementing regulations. The reinstatement of that injunction (a copy of which accompanies this memorandum) is effective immediately. The Secretaries of the Military Departments shall ensure immediate compliance with the injunction and this memorandum. The appeal from the injunction remains pending."

The Army Times first reported the news a little before noon today. The moratorium issued today follows the July 6 ruling by the U.S. Court of Appeals for the Ninth Circuit to lift the stay on an injunction of DADT enforcement issued in October 2010 by U.S. District Judge Virginia Phillips in the Log Cabin Republicans v. United States case.

Phillips's injunction -- which applies worldwide -- ordered the government "immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding" begun under DADT.

Pentagon spokeswoman Cynthia Smith wrote to Metro Weekly that, pursuant to the memorandum from Stanley, "The Secretaries of the Military Departments shall ensure immediate compliance with the injunction."

The move represents the second time the military implemented such a moratorium, having originally done so in October 2010 in its effort to follow Phillips's injunction. The Department of Justice also sought a stay of the injunction then while it appealed the case, however, and the Ninth Circuit eventually granted that request later that month.

The July 6 order from the Ninth Circuit lifted its own earlier stay, which then led to today's move. Today's move also comes as Secretary of Defense Leon Panetta finishes his first full week on the job, having taken over for former Secretary Robert Gates, who retired on July 31.

LGBT advocates have been hoping Panetta takes quick action to certify DADT repeal -- a move required of him, the chairman of the Joint Chiefs of Staff and the president under the Don't Ask, Don't Tell Repeal Act before the 1993 law is taken off the books. The July 6 order from the Ninth Circuit adds an unexpected element into the timing of that certification decision, which President Barack Obama said on June 29 was coming "in a matter of weeks, not months."

The Pentagon's Smith wrote, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

In a statement, Servicemembers Legal Defense Network executive director Aubrey Sarvis said, "SLDN welcomes this temporary suspension of 'Don't Ask, Don't Tell' discharges  in the wake of this week's court decision, but we urge the Pentagon to go further by suspending all investigations of service members that are currently ongoing, and confirm that the Department of Defense and Department of Justice are not preparing to appeal the court's ruling. It's imperative for service members, gay and straight, who have been living with ambiguity for far too long as this process has languished unnecessarily. The time for clarity and finality is long overdue."

Asked whether a decision had been made to appeal the July 6 order lifting the stay, Smith only wrote, "We are studying the ruling with the Department of Justice."

Read Stanley's memorandum: Memorandum to Military Departments DADT Injunction July 8.pdf

[Photo: Panetta]

[NOTE: This report was exanded and changed at 4 p.m. to reflect the contents of Stanley's letter and the Pentagon's response.]

Sen. Patrick Leahy (D-Vt.) announced today -- in his role as chairman of the Senate Judiciary Committee -- that, "in the coming weeks, the Committee will hold the first congressional hearing on proposals to repeal the Defense of Marriage Act (DOMA)," according to a news release issued by the senator's office.

Leahy supports the repeal of DOMA. According to the release, "The hearing will be entitled 'S.598, The Respect for Marriage Act: Assessing the Impact of DOMA on American Families,' and is expected to be held in the coming weeks. The hearing will be webcast live online. Further details will be announced at a later date."

Human Rights Campaign president Joe Solmonese said in a release, "We thank Sens. Leahy, [Dianne] Feinstein [(D-Calif.)] and [Kirsten] Gillibrand [(D-N.Y.)] for their leadership in ending federal marriage discrimination as well as Rep. [Jerrold] Nadler [(D-N.Y.)] for his advocacy in the House. We look forward to continuing to work with them on this upcoming hearing and until all marriages are treated equally in the eyes of the law.

Gillibrand praised the move, saying in a statement, "I applaud Chairman Leahy for holding this important hearing to end the discrimination that is currently enshrined into U.S. law. Marriage is the true foundation for strong families. Every loving, committed couple deserves the basic human right to get married, start a family, and have access to all the same rights and privileges that my husband and I enjoy.

"Now is the time to act on the federal level."

The move comes just days after DOJ filed a brief attacking DOMA in a lawsuit brought by Karen Golinski, a federal court employee who is seeking equal health insurance coverage for her wife that would be available for a male federal court employee for his wife. The DOJ brief strongly argued that Section 3 of DOMA is unconstitutional. Earlier today, a DOJ spokesperson -- in conjunction with a filing seeking to withdraw from an appeal in another case -- wrote that, regarding certain bankruptcy cases, that DOJ "will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law."

It is not yet known whether anyone from DOJ will testify at the hearing.

Following consultation with the House Bipartisan Legal Advisory Group (BLAG), the U.S. Trustee asked to withdraw its appeal in its challenge to the attempted joint bankruptcy petition filed by Gene Douglas Balas and Carlos Morales, a married gay couple who live in California -- a move a Department of Justice spokeswoman says represents the DOJ's new policy on all such bankruptcy filings.

DOJ spokeswoman Tracy Schmaler wrote to Metro Weekly that the July 6 filing in the Balas and Morales case represents a new policy, writing, "The Department of Justice has informed bankruptcy courts that it will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law."

Because of the federal definition of marriage contained within Section 3 of the Defense of Marriage Act, such joint filings have routinely been dismissed by courts at the urging of the U.S. Trustee, whose job as a "watchdog" over the bankruptcy process includes "[t]aking legal action to enforce the requirements of the Bankruptcy Code," according to the website for U.S. Trustee Program, which is a program under the Department of Justice.

In Balas and Morales's case, however, the bankruptcy court found on June 13 that Section 3 of DOMA was unconstitutional in its application to such couples attempting to file joint bankruptcy petitions. The U.S. Trustee, in consultation with the BLAG, had filed a notice that it was appealing the decision. The July 6 filing asks the court to withdraw that appeal.

In the filing, made in U.S. Bankruptcy Court in the Central District of California on July 6, Assistant U.S. Trustee Jill Sturtevant writes, "The [DOJ] has advised the [BLAG] of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA."

Sturtevant goes on to write, "The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for the resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal."

About the department-wide policy, Schmaler wrote to Metro Weekly that the decision was made after consulting with the BLAG went on to note, "This decision is consistent with and follows the Administration's notification to Congress in February of this year that it would no longer defend the constitutionality of Section 3 of  DOMA as applied to legally married same-sex couples but would seek to provide Congress an opportunity to enter litigation to argue in favor of DOMA's constitutionality. This decision to stop filing motions to dismiss bankruptcy petitions avoids generating costly and time-consuming constitutional litigation that neither the BLAG nor the Department plans to defend."

The move comes just days after DOJ filed a brief in another case -- a challenge to DOMA from Karen Golinski, who is seeking equal health insurance coverage for her wife that would be available for a male federal court employee for his wife -- that strongly argued that Section 3 of DOMA is unconstitutional. Hours before the bankruptcy court filing, the U.S. Court of Appeals for the Ninth Circuit lifted the stay of U.S. District Court Virginia Phillips's injunction of the enforcement of "Don't Ask, Don't Tell" -- putting the Pentagon in the position of having to "tak[e] immediate steps" to comply with the order.

While the U.S. Trustee filed a notice that it was appealing the decision to the district court, attorneys for Balas and Morales this past week filed a request to have the case immediately appealed to the Ninth Circuit -- bypassing the district court. The U.S. Trustee's July 6 filing states that Balas and Morales did not agree to the withdrawal, so the U.S. Trustee "requests that the court enter an order approving withdrawal of the appeal."

Read the Balas/Morales filing: Balas-Dismiss Appeal.pdf

In an order issued by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, U.S. District Court Judge Virginia Phillips's judgment halting the worldwide enforcement of "Don't Ask, Don't Tell" as a result of her decision in Log Cabin Republicans v. United States has been put back in effect.

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit or the U.S. Supreme Court pending an appeal of today's decision.

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order."

The three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- decided to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCR case because, the judges write, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

Among the circumstances cited by the court are the July 1 filing in Karen Golinski's federal case seeking health insurance benefits for her wife and the related earlier Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications -- such as DADT.

The judges also note that "the process of repealing Section 654 [-- the DADT law --] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer." Smith echoed this fact, writing to Metro Weekly, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

Alex Nicholson, the executive director of Servicemembers United and a plaintiff in the case, issued a statement, saying, "With the wait for certification dragging out beyond a reasonable time frame, the Court has once again stepped in to require the Pentagon to stop enforcing 'Don't Ask, Don't Tell,' and this time it very well may be for good."

Obama signed the Don't Ask, Don't Tell Repeal Act into law on Dec. 22, 2010 -- 200 days ago this Sunday, July 10. On June 29, at a White House LGBT Pride Month Reception, President Obama said that the certification required under the act -- by him, the defense secretary and the chairman of the Joint Chiefs of Staff -- would be coming in a matter of "weeks, not months."

Nicholson noted today, "I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit."

LCR executive director R. Clarke Cooper said in a statement, "As a captain in the United States Army Reserve, I have observed the reactions of my colleagues to the Department of Defense's move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step. Log Cabin Republicans are proud of our role in ending this unconstitutional and un-American policy once and for all."

Aubrey Sarvis, the executive director of Servicemembers Legal Defense Network, praised the Ninth Circuit while noting in a statement that the move could have been rendered unnecessary if the administration had proceeded more quickly with certification.

"Today's decision by the Ninth Circuit  Court of Appeals is most welcomed. It's the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department," he said. "In fact, this whole matter could have been avoided had we had certification back in the spring. It's time to get on with that important certification, end the DADT confusion for all service members, and put a final end to this misguided policy."

Human Rights Campaign president Joe Solmonese concurred with Sarvis, noting, "With troops trained on the new policy and senior military leaders having said the process is working without significant disruption, DADT is on its last legs. The time for certification is now in order to clearly and plainly wipe this damaging law off the books once and for all."

Leslie Cooper, senior staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, said in a statement, "Today's ruling underscores the fact that there is no reason for leaving this discriminatory policy on the books. The Department of Defense must certify its repeal as soon as possible so all service members can serve their country with honesty and dignity."

In addition to lifting the stay, the Ninth Circuit set arguments on the appeal of the merits of the LCR case itself -- as opposed to the stay of Phillips's order pending the appeal, which was what the judges altered today -- for the week of Aug. 29.

White House and Justice Department spokespersons did not respond to requests for comment.

Read the order: 111.pdf

A Maryland immigration judge issued an order on June 24 reopening Rodrigo Martinez's immigration case "in the interest of justice." The unusual move -- or at least a footnote in the order -- reflects the uncertain nature of immigration cases for bi-national, same-sex couples in the wake of rapid changes regarding the constitutionality of the Defense of Marriage Act.

The order reopening his case, a copy of which was obtained by Metro Weekly, cancels Martinez's pending order of removal. Martinez, who is legally married to Edwin Echegoyen, narrowly avoided deportation earlier this year when a stay of the removal order was granted.

The reopening of the case came sua sponte -- or on the judge's own accord -- according to the order, which Immigration Judge Lisa Dornell wrote was being done to give Martinez "an opportunity to present additional evidence on country conditions in support of an application for withholding of removal under the [Immigration & Naturalization Act]."

Dornell then wrote in a footnote to the order, "The parties shall also be prepared to address current policy and/or legal developments relating to the ability of same-sex spouses to benefit from visa petitions filed by United States citizen spouses."

The couple is one of several bi-national, same-sex married couples who have received attention this year, particularly after the Department of Justice's Feb. 23 decision that the Defense of Marriage Act -- which has prevented the Department of Homeland Security from considering green card applications based on marriage for those couples -- is unconstitutional and will no longer be defended by DOJ in court.

Martinez's attorney, Lavi Soloway, tells Metro Weekly, "Our argument is that prosecutorial discretion is proper in these cases in large measure because the administration's own position is that Section 3 of DOMA is unconstitutional."

Following the expansive DOJ filing on July 1 in Karen Golinski's case seeking equal health insurance coverage for her wife as would be given to an opposite-sex spouse, Soloway -- who started Stop the Deportations in 2010 with his law partner -- says of the change from the Feb. 23 decision to the July 1 brief, "That has been expanded from one letter to a 31-page brief. It's just becoming abundantly clear that the administration is aligned with our side and with the side of the plaintiffs in the DOMA cases.

"And, in the context of immigration court, it has discretion to protect couples while still enforcing DOMA," he says, adding, "The Golinski brief really strengthens our request. It's hard to argue back ... there's really significant meat on the bone with the Golinski brief. We're going to look forward to having that conversation with opposing counsel with the Golinski brief as yet another point of discussion."

Martinez and Echegoyen are not alone. In recent months, several same-sex couples -- many of whom are represented by Soloway and are part of the Stop the Deportations project -- have had deportation proceedings continued or canceled, including Henry Velandia, a Venezuelan citizen, and his husband, Josh Vandiver.

As The New York Times reported this past week, "federal officials ... canceled the deportation of a Venezuelan man in New Jersey who is married to an American man." There, "Jane H. Minichiello, the chief counsel at the Newark office of Immigration and Customs Enforcement, an arm of the Homeland Security Department, inform[ed] [Soloway] that the agency had agreed to his request to close the deportation proceedings. According to Mr. Soloway, Ms. Minichiello said pursuing Mr. Velandia's deportation 'is not an enforcement priority at this time.'"

Of the cases -- and the couples' new-found success at getting immigration judges to listen -- Soloway said, "I think that these individuals are making the right arguments at the right time.

"I think we'll see more of this, but I also think there will be times when opposing counsel [with DHS] won't necessarily agree. But, we certainly would hope that we'll have abundant opportunity to bring forward all elements of the argument -- including the Golinski brief and any future briefs -- to persuade the other side, at the very least, to agree to continuances [to prevent deportations]."

[Photo: Edwin Echegoyen, left, and Rodrigo Martinez are married in the District on March 1 (Photo provided by the DOMA Project.)]

Today, the Department of Justice filed a brief in federal court employee Karen Golinski's federal court challenge, supporting her lawsuit seeking access to equal health benefits for her wife and arguing strongly that the Defense of Marriage Act is unconstitutional in terms unparalleled in previous administration statements.

In a brief filed on behalf of the Office of Personnel Management and other federal defendants, DOJ acknowledged the U.S. government's "significant and regrettable role" in discrimination in America against gays and lesbians.

The summary of the DOJ argument that Golinski's case should not be dismissed begins simply: "Section 3 of the Defense of Marriage Act, 1 U.S.C.  Section 7 ('DOMA'), unconstitutionally discriminates."

The filing signed by Christopher Hall, a trial attorney with DOJ, responds to the June 3 filing by the lawyers for the House Bipartisan Legal Advisory Group's Republican members asking the federal court in San Francisco to dismiss Golinski's lawsuit. That June 3 filing was the first in which Paul Clement -- the outside lawyer hired by the Republican leaders to defend the Defense of Marriage Act in court -- presented a substantive defense of the law.

Unlike in other cases where DOJ has stopped defending DOMA in accordance with President Obama and Attorney General Eric Holder's decision that Section 3 of DOMA -- the federal definition of marriage -- is unconstitutional, DOJ lawyers today made an expansive case in a 31-page filing that DOMA is unconstitutional. Previously, the government had attached the Feb. 23 letter from Holder to House Speaker John Boehner (R) that announced the DOJ position to filings to courts about the decision to stop defending the law, but it had not laid out any more expansive reasoning.

But, for Golinski's case, DOJ did so. In describing why heightened scrutiny applies to classifications based on sexual orientation, for example, the DOJ's lawyers -- in describing how "gays and lesbians have been subject to a history of discrimination" -- write, "The federal government has played a significant and regrettable role in the history of discrimination against gay and lesbian individuals."

Compare that to the Feb. 23 letter, where Holder used more vague language, writing, "[T]here is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today."

Today's filing does more than acknowledge the federal government's role in discrimination, going on to detail specific instances of anti-gay and anti-lesbian discrimination, including the 1950 Senate resolution seeking an "investigation" into "homosexuals and other sexual perverts" in government employement and President Dwight Eisenhower's executive order adding "sexual perversion" as a ground for "possible dismissal from government service," in the brief's words. It also details the role of the Federal Bureau of Investigation and the U.S. Postal Service in investigations seeking information about government employees suspected of such "perversion."

The brief goes on to describe anti-gay and anti-lesbian state and local discrimination, as well as private discrimination, before discussing other considerations made by courts when deciding what level of scrutiny should be applied to laws classifying groups -- including immutability; political powerlessness; and whether the classification bears any relation to, as the brief puts it, "legitimate policy objectives or ability to perform or contribute to society."

DOJ's lawyers conclude that heightened scrutiny applies and argue how, under that heightened scrutiny, Section 3 of DOMA should be found to be unconstitutional. Heightened scrutiny, the brief details, would require that Section 3 is substantially related to an important government objective.

DOJ states: "Section 3 fails this analysis."

After detailing why, the brief concludes, "[T]he official legislative record makes plain that DOMA Section 3 was motivated in substantial part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3. Section 3 of DOMA is therefore unconstitutional."

In addition to the DOJ filing, Golinski earlier today filed a motion for summary judgment, arguing that there are no factual disputes in her case that require a trial and that the court can and should decide the case in her favor on the legal issues alone.

Read:

• DOJ's Opposition to the BLAG Motion to Dismiss: DOJ-OppToBLAGMtD.pdf
• Golinski's Motion for Summary Judgment: Golinski-MfSJ.pdf

[NOTE: This post was edited and expanded after initial posting, with final changes made at 1:30 a.m. July 2.]

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News from the White House today in advance of next week's planned "Twitter Town Hall."

From the advisory:

WASHINGTON, DC – President Obama will participate in the first ever Twitter Town Hall at the White House on Wednesday, July 6 in the East Room. Twitter co-founder and Executive Chairman Jack Dorsey will moderate a conversation between President Obama and Americans across the country about the economy and jobs.

Twitter users can submit questions using the hashtag #AskObama.  More information from Twitter can be found at the event’s homepage: http://askobama.twitter.com. 

WEDNESDAY, JULY 6, 2011

2:00 PM ET

An Agence-France Presse article on the Town Hall noted, "One user asked when Obama would support gay marriage, a subject on which the president has said his position is still evolving."

On June 30, The Wall Street Journal's Laura Meckler -- who asked Obama twice about his personal views on same-sex marriage at the June 29 news conference -- suggested she was going to try again to get the president to answer, saying, "I'll try a third time on Twitter."

The page referenced in the advisory is hosted by Twitter and proclaims that "The President of the United States will answer your questions about the economy and jobs live via webcast from the White House." The link is to the White House page on the economy.

The color and font choices, however, are very close to the current color scheme used by Obama re-election campaign.

White House press secretary Jay Carney was asked on June 30, "Is the campaign at all involved with the town hall next week, or is that his official White House Twitter account that he uses?"

Carney replied, "This is an official event."

Read the exchange with Meckler below the jump.