[Photo: Servicemembers Legal Defense Network executive director Aubrey Sarvis, left, speaks at a news conference on Oct. 27, 2011, announcing the organization's filing of a lawsuit challenging the Defense of Marriage Act, as several of the lawsuit's plaintiffs wait to speak. (Photo courtesy of SLDN.)]

Today in U.S. District Court in Massachusetts, Servicemembers Legal Defense Network filed a federal lawsuit against three cabinet secretaries, asserting that the denial of "same recognition, family support and benefits" for servicemembers with same-sex spouses and their children is unconstitutional. To the extent that the Defense of Marriage Act prohibits such equal treatment, the complaint filed this morning argues, DOMA is unconstitutional.

The lawsuit, filed on behalf of several servicemembers and veterans and their spouses, leads off in simple terms: "This is an action by current and former active duty members of the United States armed forces seeking equal benefits for equal work."

At a later point in the complaint, the lawyers take a rhetorical strike at DOMA, stating, "Rather than a 'defense of marriage,' DOMA would require the Plaintiffs to divorce and marry someone else of the opposite sex to obtain spousal benefits."

The lead plaintiff, Maj. Shannon McLaughlin is in the Massachusetts National Guard and serves as a Judge Advocate General. According to the complaint filed today, she has served for 13 years and is married in the State of Massachusetts to her partner of more than three years, Casey McLaughlin. They have ten-month old twins, Grace and Grant McLaughlin.

Among the benefits denied to same-sex couples currently and at issue in the lawsuit are medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefit plans, and the right to be buried together in military cemeteries.

The lawsuit names Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki in their official capacity. However, the complaint notes the administration's position that Section 3 of DOMA -- the federal definition of "marriage" and "spouse" -- is unconstitutional and states, "The Plaintiffs do not anticipate that the United States will contest this suit because the government agrees that Section 3 of DOMA is unconstitutional."

The complaint also claims that the plaintiffs do not expect Panetta to "oppose the relief sought" in the lawsuit.

Department of Defense spokeswoman Eileen Lainez told Metro Weekly, "We will carefully evaluate the complaint and we will consult [the Department of Justice]. In the meantime, we will continue to follow the law."

The lawsuit, in which SLDN has been joined by lawyers from Chadbourne & Parke LLP, lays out previous military statements opposing differing treatment for different servicemembers, as well as post-DADT guidance sent out by the various service branches noting the military's "zero-tolerance policy" for harassment or discrimination. The complaint then argues, "Given the military's 'zero tolerance' for discrimination based on sexual orientation, it is unconscionable that DOMA forces the military to engage in the very discrimination that it prohibits its service members from engaging in through its 'zero tolerance' policy."

In addition to arguing that such treatment violates constitutional equal protection guarantees, the complaint claims that such treatment violates "the fundamental right to marry," "the Tenth Amendment and constitutional principles of federalism" and bills of attainder -- which are prohibited by the Constitution and which the lawsuit defines as "any law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial."

Today's lawsuit, McLaughlin v. Panetta, was filed in the same federal court where Gay & Lesbian Advocates & Defenders filed a challenge to Section 3 of DOMA in a non-military context. That lawsuit, Gill v. Office of Personnel Management, resulted in a decision at the district court that Section 3 of DOMA is unconstitutional. That decision is now on appeal before the U.S. Court of Appeals for the First Circuit, where DOMA is being defended by the Republican leadership-controlled House Bipartisan Legal Advisory Group.

As to the Department of Defense's current treatment of servicemembers, Lainez told Metro Weekly, "Service members continue to have some benefits for which they may designate beneficiaries regardless of sexual orientation. Eligibility for a number of other benefits is restricted by applicable statutes, including the Defense of Marriage Act. In connection with 'Don't Ask, Don't Tell' repeal, the Defense Department is engaged in a careful and deliberate review of the possibility of extending eligibility for benefits, when legally permitted, to other individuals including same-sex partners."

[UPDATE @ 12:15P: Log Cabin Republicans executive director R. Clarke Cooper -- whose organization challenged DADT in a federal case that resulted in a historic ruling in September 2010, since vacated, striking down the military law as unconstitutional -- voiced support for the lawsuit in response to an inquiry from Metro Weekly. 

Cooper wrote, "Log Cabin Republicans is considering filing an amicus brief in support of the SLDN suit. As LCR v U.S. challenged the DADT statute and lead to legislative repeal, the DOMA suit will highlight the inequities of a stratified benefits system which runs counter to military culture."

The Human Rights Campaign issued a news release supporting the lawsuit as well. HRC president Joe Solmonese said in the statement, "Today's legal action shines a light on the difficulties that the so-called Defense of Marriage Act creates for lesbian and gay military families. HRC applauds the bravery of these service members and thanks Servicemembers Legal Defense Network and Chadbourne & Parke LLP for making sure they will get their day in court."

A White House spokesman has not responded to a request for comment.]

Read the SLDN complaint: DOMA Complaint ECF FILED.pdf

The Family Research Council's political arm, FRC Action, today released its "Vote Scorecard" for the first session of the 112th Congress.

Of the 10 House votes scored, half relate to abortion, two to the Obama health care legislation, two to LGBT issues and one to school vouchers. In the Senate, no LGBT votes were scored.

FRC has been designated as a hate group by the Southern Poverty Law Center. The group is one of 13 groups designated as such because of what SPLC calls "propagation of known falsehoods -- claims about [lesbian, gay, bisexual and transgender] people that have been thoroughly discredited by scientific authorities -- and repeated."

The two LGBT-related House votes scored are, per the FRC Action Scorecard:

9. Protecting the Defense of Marriage Act within the Military: Offered by Rep. Virginia Foxx (R-NC), this amendment (H.AMDT. 546) to the Department of Defense Appropriations Act of 2012 (H.R. 2219) would prohibit Pentagon funds from being used in a way that is inconsistent with the Defense of Marriage Act. (Passed 7/7/2011, 248 yeas to 175 nays, Roll Call No. 516) FRC Action and CitizenLink Supported this Amendment.

10. Prohibiting Same-Sex Marriage on Navy Bases: Offered by Rep. Tim Huelskamp (R-KS), this amendment (H.AMDT. 573) to the Department of Defense Appropriations Act of 2012 (H.R. 2219) would prohibit funding for the Navy directive allowing chaplains to perform or facilitate same-sex marriages on Navy bases, which would be in violation of the Defense of Marriage Act. (Passed 7/8/2011, 236 yeas to 184 nays, Roll Call No. 528) FRC Action and CitizenLink Supported this Amendment.

Human Rights Campaign spokesman Michael Cole-Schwartz told Metro Weekly of the scorecard, "It's certainly not unexpected that FRC would score members on these anti-LGBT amendments. Even with DADT a thing of the past, FRC is so desperate to stop equality from moving forward that they are rewarding members for nibbling at the edges of open service."

A news release from FRC Action notes that eight senators and 54 representatives had 100 percent voting records in the scorecard.

[Image, above: Screen capture of the FaithVotes web site at 1:30 p.m. today. Image, below: Screen capture of the FaithVotes web site at 2:30 p.m. today.]

A video uploaded to YouTube on Oct. 16 by user "djdubyasr" and promoted by the U.S. Pastor Council that takes aim at Houston Mayor Annise Parker caught the attention of the Gay and Lesbian Victory Fund today, which called the video a "vicious" attack on the out lesbian official.

The video, which includes a C-SPAN clip of Parker's acknowledgement of her role in the LGBT community during her inauguration and references actions taken as mayor to protect transgender Houstonians from discrimination, urges viewers to "Show this in your church!" and directs them to FaithVotes.org, a project of the U.S. Pastor Council.

The description of the video on YouTube states:

A realistic look at Houston Mayor Annise Parker's first term and how she has imposed her Gay, Lesbian, Bisexual, Transgendered, etc. agenda on the city. Houston voters will choose on November 8 whether this is their agenda also.

The individual who answered the phone at the U.S. Pastor Council contact number said that the video was "not produced by the Pastor Council." Although he told Metro Weekly that he knew who produced it, he also said the council was not releasing that information "at this point." An attempt to gather further information was unsuccessful, as no one answered the phone at the number for the U.S. Pastor Council and the phone number went to a voice mail message for the Houston Area Pastor Council.

FaithVotes had embedded the video on its website, as shown in a screen capture at the top of the post, with a notice that it will provide a high-quality version of the video "at no cost" to churches. The embedded video was removed from the FaithVotes web site, as seen at right, shortly after Metro Weekly contacted the organization asking about its connections to the producer of the video.

Among the other items promoted on the FaithVotes site is the group's 2011 Church Bulletin Insert, which states, "Every election is critical because we select the core philosophy and values of those making critical public decisions on our behalf. Not voting for strong, godly candidates of conviction NOW guarantees bad laws LATER."

An alert about the video -- and fund-raising pitch -- from the Victory Fund sent out today said of the ad:

But now, just before Election Day, an anti-gay group has released a last-minute video urging Houstonians to vote against Annise because she's honest about being a lesbian. It doesn't matter that she's been an effective leader in troubled times. They want to make this a referendum on the mayor's sexual orientation.

Watch the video:

The Senate Judiciary Committee has set Nov. 3 for beginning the mark-up of the Respect for Marriage Act, a bill that would repeal the Defense of Marriage Act.

From Sen. Patrick Leahy (D-Vt.), the chairman of the committee:

The U.S. Senate Judiciary Committee will begin debate on legislation to repeal the Defense of Marriage (DOMA) on November 3, Chairman Patrick Leahy (D-Vt.) announced Tuesday. 

Leahy announced the agenda Tuesday for the Committee’s November 3 executive business meeting.  The agenda includes a number of items held over from the panel’s last meeting, as well as the addition of the Respect for Marriage Act.

On Oct. 14, Leahy announced that the committee would be holding a mark-up session and vote on the bill. The bill, introduced by Sen. Dianne Feinstein, has 30 co-sponsors.

The House version of the Respect for Marriage Act, which was introduced by Rep. Jerrold Nadler (D-N.Y.), has 128 co-sponsors. Controlled by Republicans who are mounting a defense of DOMA in court, however, the House is unlikely to take action on the bill in this Congress.

The Obama administration supports the bill, a point Obama made in his Oct. 1 speech to the Human Rights Campaign. When there, he said, "I vowed to keep up the fight against the so-called Defense of Marriage Act.  There's a bill to repeal this discriminatory law in Congress, and I want to see that passed. ... I believe the law runs counter to the Constitution, and it’s time for it to end once and for all.  It should join 'don't ask, don't tell' in the history books."

The U.S. Court of Appeals fo the Ninth Circuit today granted a stay pending appeal of U.S. District Court Judge James Ware's order unsealing the tapes of the Proposition 8 trial. The appeals court, however, set a rapid schedule for considering the matter, ordering oral arguments on the question of releasing the tapes for the week of December 5.

From the three-judge panel considering the matter in today's order:

The parties shall submit simultaneous principal briefs no later than November 14 and reply briefs no later than November 28. The length of these briefs is to be governed by Fed. R. App. P. 32(a)(7). The court will not entertain requests for extension of either the length limitations or the briefing schedule.

The court will hear oral argument during the week of December 5, 2011, in San Francisco, on a date to be determined subsequently. Thirty minutes of argument time is allocated to each side.

The question of whether the tapes should be unsealed is being considered at the same time that the Ninth Circuit is considering the appeal of the August 2010 decision by now-retired U.S. District Court Judge Vaughn Walker striking down Proposition 8 as unconstitutional. The appeals court asked the California Supreme Court to explain whether proponents have a special interest in or legal right to defend an initiative in court when, as with Proposition 8, the state officials who generally would defend the law in court have decided it is not in the state's interest to do so. Once the California Supreme Court issues its decision, then the Ninth Circuit will decide whether the proponents have standing to bring the appeal and, if so, whether Walker was correct on the merits of the argument that Proposition 8 is unconstitutional.

Read the order: 2011-10-24-Order-granting-motion-to-stay-trial-video.pdf

Senate Health, Education, Labor and Pensions (HELP) Committee Chairman Tom Harkin (D-Iowa) announced that the committee today reported the Elementary and Secondary Education Reauthorization Act of 2011 -- a mark-up that did not contain either of two anti-bullying bills pushed by LGBT advocates.

The two amendments that advocates had been hoping to have been added to the bill are the Safe Schools Improvement Act (SSIA) and Student Non-Discrimination Act (SNDA). The SSIA, co-introduced by Sens. Bob Casey Jr. (D-Pa.) and Mark Kirk (R-Ill.), would amend the Safe and Drug-Free Schools and Communities Act to include bullying- and harassment-prevention programs, including ones based on sexual orientation or gender identity. The SNDA, introduced by Sen. Al Franken (D-Minn.) and modeled after Title IX, would add sexual orientation and gender identity to federal education nondiscrimination law.

Justine Sessions, a spokeswoman for HELP Committee Chairman Tom Harkin (D-Iowa), told Metro Weekly, "Both SNDA and Safe Schools were discussed as amendments and withdrawn."

She added that Franken "plan[s] to bring SNDA up when ESEA is considered by the full Senate."

HRC president Joe Solmonese said in a statement, "We are disappointed that the Committee did not adopt anti-LGBT bullying amendments that enjoyed bipartisan, majority support. This major reauthorization bill was the best opportunity the Senate will have in this Congress to address the problem of bullying faced by LGBT students."

In a statement, Harkin said, "Like any major piece of legislation, this bill is not perfect, but it is an important step forward for America's children. I will continue to work with my colleagues on both sides of the aisle and education experts to build on this strong foundation and improve this bill when it is considered by the Full Senate."

Solmonese added: "It is imperative that the Committee revisit this issue and acknowledge the consequences bullying has on the youth in our community."

The ESEA mark-up happened on Spirit Day, which the Gay & Lesbian Alliance Against Defamation describes as a day in which "[m]illions of Americans wear purple ... as a sign of support for lesbian, gay, bisexual and transgender (LGBT) youth and to speak out against bullying." Among the sites altered for Spirit Day was the White House Facebook page.

The White House has generally supported anti-bullying legislation, but, as Metro Weekly detailed in March, has not taken any of several opportunities to endorse either the SSIA or SNDA.

Asked by Metro Weekly on Oct. 19 if the White House had asked Harkin to include either bill in the legislation, White House spokesman Shin Inouye later on Oct. 19 replied by writing only, "We appreciate Chairman Harkin’s efforts on reauthorization and we will continue to work with him and other members of the Committee to make improvements to the legislation."

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

In a statement, committee ranking minority member Michael Enzi (R-Wyo.), said, "Today's markup of the Elementary and Secondary Education Act was an important first step, but we still have a lot of work to do when the bill reaches the floor of the Senate. We must keep working in order to have true bipartisan education reform. I thank my colleagues for their hard work and look forward to continuing to work with them as we move forward in the legislative process."

Spokespersons for Franken and Casey were not immediately available for comment, although multiple messages seeking comment were left with both offices.

[Photo: Janice Langbehn receives the Presidential Citizens Medal from President Obama on Oct. 20, 2011. (Photo by Chris Geidner.)]

Janice Langbehn, a woman who came to be known to the LGBT community and the nation because of a tragic wrong she faced, was recognized today by President Obama for "transform[ing] her own profound loss into a resounding call for compassion and equality."

One of 13 recipients today of the Presidential Citizens Medal, Langbehn's story began for Obama the same way it began for most of the country: when he read about her story in The New York Times.

Brought to his attention by then-chief of staff Rahm Emanuel, the May 18, 2009, story by Tara Parker-Pope began, "When a loved one is in the hospital, you naturally want to be at the bedside. But what if the staff won't allow it?"

That was the story of Langbehn and her partner, Lisa Pond. Despite having an advanced healthcare directive, Langbehn and the couple's children were kept from visiting Pond as she lay dying at Jackson Memorial Hospital. As the Times reported, "Pond ... collapsed with an aneurysm during a Florida vacation and was taken to a Miami trauma center. She died there, at age 39, as Ms. Langbehn tried in vain to persuade hospital officials to let her visit, along with the couple's adopted children."

Lambda Legal brought a lawsuit against the hospital on behalf of Langbehn, which was later dismissed. But, on April 15, 2010, the president took note, directing Secretary of Health and Human Services Kathleen Sebelius to issue rules prohibiting sexual orientation or gender identity discrimination in hospital visitation at hospitals that receive Medicaid or Medicare funding. And, after issuing that directive, he called Langbehn to tell her the news.

In June, Langbehn met in person with the president, and Obama told the audience gathered for the LGBT Pride Month Reception on June 22, 2010, about Langbehn's story -- concluding that the treatment she and he children had faced "was wrong [and] cruel." He also noted that day that the rules would be put into place and that Sebelius would be asking hospitals to adopt the changes even before the rule went into effect.

Then, at the Human Rights Campaign annual dinner on Oct. 1, Obama raised Langbehn's story again, saying, "I told her that we were going to put a stop to this discrimination." Refencing the rule, which went into effect on Jan. 18, Obama said, "And you know what? We got it done."

Today, Obama recognized Langbehn for her role in that process and for, along with other, moving on to help others after a loss.

"As a father and husband, I can't begin to imagine the grief that they must have felt in that moment -- their anger and their sense that the world was not fair. But they refused to let that anger define them," the president said. "They each became, in Janice's words, an 'accidental activist.'  And thanks to their work, there are parents and partners who will never have to go through what they went through."

Of all 13 recipients of the Presidential Citizens Medal today, Obama said in the East Room of the White House, "They could have made excuses for doing nothing. Instead, they chose to help."

The citation for Langbehn, read by a military aide, stated, "Janice Langbehn transformed her own profound loss into a resounding call for compassion and equality. When the woman she loved, Lisa Pond, suddenly suffered a brain aneurysm, Janice and her children were denied the right to stand beside her in her final moments. Determined to spare others from similar injustice, Janice spoke out and helped ensure that same-sex couples can support and comfort each other through some of life’s toughest trials. The United States honors Janice Langbehn for advancing America’s promise of equality for all."

In a release issued by HRC today, Langbehn said, "It is a great honor to receive the Presidential Citizens Medal. It is my hope that my family's loss, this medal, and the attention it brings to the discrimination our families have faced during the most difficult moments, will help ease suffering and ensure that no family has to go through what my family went through."

[Photo, above right: Janice Langbehn watches as President Obama gives remarks on Oct. 20, 2011, before the presentation of the Presidential Citizens Medals. Photo, below: President Obama shakes hands with Micaela Perez, the five-year-old ganddaughter of Presidential Citizens Medal awardee Roberto Perez. (Photos by Chris Geidner.)]

The president's full remarks are below the jump.

Today and Thursday, Oct. 20, the Senate's Health, Education, Labor and Pensions Committee is slated to consider the reauthorization of the Elementary and Secondary Education Act. For more than a year, LGBT advocates have been told that the ESEA reauthorization is the time when two bills aimed at improving the lives of LGBT students would be addressed.

The Safe Schools Improvement Act (SSIA) and Student Non-Discrimination Act (SNDA) are the bills. The SSIA would amend the Safe and Drug-Free Schools and Communities Act to include bullying- and harassment-prevention programs, including ones based on sexual orientation or gender identity. The SNDA, modeled after Title IX, would add sexual orientation and gender identity to federal education nondiscrimination law.

The bills have broad support from Democrats -- which should mean that their inclusion in the bill in the Democratic Senate would be likely. But, neither bill was included in the ESEA reauthorization Manager's Amendment, which was filed on Oct. 17, and it is not clear whether the sponsors of the bills will be offering them as amendments to the ESEA during this week's committee action.

The SNDA was introduced by Sen. Al Franken (D-Minn.) and Rep. Jared Polis (D-Colo.). The Senate bill has 34 co-sponsors, and the House version has 147 co-sponsors. At the end of the 111th Congress, the bill had 127 sponsors and co-sponsors in the House and 32 sponsors and co-sponsors in the Senate.

The SSIA, meanwhile, was introduced by Sens. Bob Casey Jr. (D-Pa.) and Mark Kirk (R-Ill.) and has 31 co-sponsors -- including Sen. Tim Johnson (D-S.D.), who only signed on to the bill on Oct. 18. At the end of the 111th Congress, the bill had 132 sponsors and co-sponsors in the House and 18 sponsors and co-sponsors in the Senate. The House bill, introduced in the 112th Congress by Rep. Linda Sanchez (D-Calif.) currently has 106 co-sponsors.

In March, Metro Weekly reported:

Over the course of the past nine months, in fact, White House and other administration officials have declined numerous opportunities to endorse either bill and have rarely even mentioned the bills except in response to specific questions about them.

For this story, White House spokesman Shin Inouye repeated a point he's told Metro Weekly several times previously, writing, ''We support the goals of both of these bills. This year, when the Elementary and Secondary Education Act is being considered, we look forward to working with Congress to ensure that all students are safe and healthy and can learn in environments free from discrimination, bullying and harassment.''

The circumstances haven't changed since then. Despite the administration's willingness to endorse the Respect for Marriage Act -- a bill that is, by any reasonable measure, unpassable in the 112th Congress -- the White House still has never endorsed either the SNDA or the SSIA.

Asked this week about the White House views on the bills' inclusion in the ESEA, Inouye told Metro Weekly:

We support the goals of both of these efforts.  As the Elementary and Secondary Education Act is being considered, we look forward to working with Congress to ensure that all students are safe and healthy and can learn in environments free from discrimination, bullying and harassment.

Asked today specifically whether the administration is asking HELP Committee Chairman Tom Harkin (D-Iowa) to include either or both bills in the ESEA reauthorization, the White House had no response.

At this point, it is unclear whether either Sens. Casey, Franken or Kirk -- all of whom sit on the HELP Committee -- will be introducing the bills as amendments, with a spokeswoman for Franken saying today that he still has not decided the course of action to take on the SNDA.

The Franken spokeswoman said at a little past noon today that the committee had adjourned for a recess and that it was unclear if the committee would reconvene today.

[UPDATE @ 4P: A HELP committee spokesman tells Metro Weekly that the mark-up is scheduled for once the Senate goes into recess tonight, but that if that does not happen tonight the committee is scheduled to hold the mark-up at 8 a.m. Thursday, Oct. 20.]

Metro Weekly will have more as the ESEA reauthorization continues.

The defense team of former Army Lt. Dan Choi was dealt a setback on Oct. 11 after a U.S. District Court judge ruled that the judge overseeing Choi's trial cannot allow Choi's attorneys to pursue a defense of selective or vindictive prosecution following a 2010 arrest while protesting in front of the White House, according to the Associated Press.

Chief Judge Royce C. Lamberth, the U.S. District Judge for the District of Columbia, ruled to issue a writ of mandamus ordering that Magistrate Judge John Facciola cannot take into account whether prosecutors were treating Choi differently because he was openly gay and protesting the military's now-defunct "Don't Ask, Don't Tell" policy, which prevented gay and lesbian servicemembers from serving openly.

On Oct. 17, Choi's lawyer, Robert Feldman, told Metro Weekly that an appeal has not yet been filed and that the legal team is currently reviewing their options. A decision is expected this week.

Choi was arrested in November 2010 after he and 12 other gay rights activists chained themselves to the White House fence while protesting "Don't Ask, Don't Tell," which was repealed this September after the passage of the Don't Ask, Don't Tell Repeal Act in December 2010. Following his arrest, Choi was tried in federal court on a charge of failure to obey a lawful order by a police officer.

By preventing Choi's lawyers from pursuing a defense of selective or vindictive prosecution, Lamberth's ruling also inhibits them from requesting information, documents or other correspondence relating to Choi’s arrest and prosecution which they would need to prove the government unfairly targeted Choi.

In an Oct. 7 hearing before Judge Lamberth, Assistant U.S. Attorney Stratton Strand argued that Facciola had erred in finding prima facie evidence that would allow Choi's lawyers, Robert Feldman and Norman Kent, to pursue a defense of selective or vindictive prosecution. Strand said that because the trial had already begun, double jeopardy would prevent the government from re-trying Choi if the case were dismissed or if Facciola acquitted Choi based on the finding of selective or vindictive prosecution.

Feldman argued that evidence and testimony from the trial had revealed the government singled out Choi for arrest and prosecution and trying him in federal court for a violation similar to two prior arrests that were handled differently. Following those other arrests, Choi was charged in D.C. Superior Court, and the charges were eventually dropped.

But Lamberth asked Feldman why he had not filed a defense of selective or vindictive prosecution beforehand, echoing government arguments that such a defense should have been raised prior to the start of the trial, and not during.

In response to Lamberth's question, Feldman argued that Facciola's role as both judge and jury allowed him to consider constitutional issues and determine from testimony given by Choi, his fellow protestor Captain James Pietrangelo II, and officials from the U.S. Park Police whether vindictive prosecution could be used as a defense.

In a prepared statement, Feldman said Choi’s legal team intends to appeal to the D.C. Court of Appeals, which can review Lamberth’s decision to grant the government’s petition for mandamus. 

"Judge Lamberth's decision to grant mandamus and therefore exclude Dan's defense of selective or vindictive prosecution would be otherwise unreviewable, because it is not a decision by Judge Facciola that we could then have reviewed upon appeal upon a theoretical conviction," Feldman said in the statement. "This derives from the fact that Judge Lamberth lacked jurisdiction and had to jump through unique and novel hoops to reach this unprecedented result."

Feldman also viewed Lamberth's ruling as depriving Choi of his right to a dismissal under Federal Criminal Rule 48, which could be granted if Choi's right to a speedy trial has not been met. According to the Federal Rules of Criminal Procedure, "the court may dismiss an indictment, information or complaint if unnecessary delay occurs in presenting a charge to a grand jury, filing an information against a defendant, or bringing a defendant to trial."

Feldman said, "We simultaneously stand ready to continue the criminal trial before Judge Facciola and are still confident that Judge Facciola will find our client not guilty."

A spokesman for the U.S. Attorney's Office declined comment on the case. 

[Photo: Feldman, left, and Choi (Photo by John Riley.)]

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) announced that his committee, which held a hearing on the Respect for Marriage Act earlier this year, will hold a mark-up session and vote on the bill that would repeal the Defense of Marriage Act next month.

In a statement announcing the news, Leahy said, "The march for equality continues, and now is the time to ensure equality for gay and lesbian Americans who are lawfully married."

Of his plans on the bill, he said, "Next month, I will call up the Respect for Marriage Act for debate and a vote in the Judiciary Committee. The Respect for Marriage Act would repeal the Defense of Marriage Act, which prevents thousands of American families from being protected by laws that help secure other American families. This is part of the nation's continuing fight for civil rights for all Americans."

The bill, which was introduced in March by Sen. Dianne Feinstein (D-Calif.), currently has 29 co-sponsors, including Leahy. It currently has no Republican co-sponsors in the Senate.

In a statement, Human Rights Campaign president Joe Solmonese said, "This markup is an incredible step toward ending federal marriage discrimination that causes real harm to American families. Chairman Leahy and Senator Feinstein have been leaders in this fight and we applaud them for continuing the momentum against this unjust law."

Evan Wolfson, president of Freedom to Marry, said in a statement, "Thousands of loving and committed couples have gotten married in New York and other states since the Senate Judiciary Committee held hearings on the Respect for Marriage Act in July, and all of them are now enduring direct harms because of the so-called Defense of Marriage Act and its double standard. It is time for Congress to repeal DOMA's discrimination, and we are pleased that Senator Leahy is moving the Respect for Marriage Act forward."

The Obama administration supports the Respect for Marriage Act, a point Obama made in his Oct. 1 speech to HRC. When there, he said, "I vowed to keep up the fight against the so-called Defense of Marriage Act.  There's a bill to repeal this discriminatory law in Congress, and I want to see that passed. ... I believe the law runs counter to the Constitution, and it’s time for it to end once and for all.  It should join 'don't ask, don't tell' in the history books."

The House, controlled by Republicans who are mounting a defense of DOMA in court, are unlikely to take action on the bill in this Congress.

At 2:25 p.m. today, on a 48-44 vote, the U.S. Senate confirmed Alison Nathan's nomination to serve as a federal judge on the U.S. District Court for the Southern District of New York.

Nathan, an out lesbian, will be the second out lesbian federal judge with lifetime tenure in the country, joining U.S. District Court Judge Deborah Batts on the bench of the Southern District of New York.

White House spokesman Shin Inouye praised the Senate action, writing, "The President welcomes the confirmation of Alison Nathan. She will serve the American people well from the District Court bench."

Five members of the Democratic caucus did not vote for Nathan's nomination, and no Republicans voted for it. Less than three months ago, U.S. District Court Judge J. Paul Oeken, was confirmed with the support of 28 Republicans. Oetken also sits on the Southern District of New York bench and currently is the only out gay male judge serving in one of the lifetime tenure positions in the federal judiciary.

Four Democrats not voting today were Sens. Kay Hagan (D-N.C.), Tom Harkin (D-Iowa), Joe Manchin (D-W.V.) and Debbie Stabenow (D-Mich.). Sen. Joseph Lieberman (I-Conn.), who caucuses with the Democrats, also did not vote. The three Republicans not voting were Sens. Tom Coburn (R-Okla.), Richard Lugar (R-Ind.) and David Vitter (R-La.).

President Obama nominated Nathan, who had served as a White House associate counsel earlier in the administration, for the federal judgeship on March 31. Following a hearing on June 8, the Senate Judiciary Committee on July 14 favorably reported her nomination to the full Senate for a vote.

Nathan most recently served in the office of New York Attorney General Eric T. Schneiderman (D) as special counsel to Solicitor General Barbara Underwood, a position she held since 2010.

Following graduation from Cornell Law School, Nathan clerked, first for Judge Betty Fletcher of the U.S. Court of Appeals for the Ninth Circuit and then for former U.S. Supreme Court Justice John Paul Stevens.

Nathan lives in New York with her partner, Meg Satterthwaite, and their twin sons Oliver and Nathan.

The primary senator to speak today against Nathan's nomination was Sen. Jeff Sessions, who criticized Nathan for more than 18 minutes. Among his primary concerns were that she could potentially be an "activist judge," was inexperienced and -- as discribed at length -- might be too willing to rely on foreign law.

Saying, "We didn't adopt the laws of China. ... We didn't adopt laws in France or Italy or Brazil or Yugoslavia," Sessions said that reliance on federal court decisions was a sign that potential judges must operate "under the Constitution."

Of such foreign-law reliance, he said, "I think it is a dangerous philosophy." He then stated that by holding such views, people "fundamentally can disqualify themselves from the bench."

In summary, Sessions -- whose own federal court nomination was rejected by the Senate Judiciary Committee in 1986 -- said of Nathan, "Perhaps if she had more legal experience, she would have a better idea of the role of a judge."

Sen. Charles Schumer (D-N.Y.) spoke in defense of Nathan's nomination, calling Sessions's assessment of Nathan's views on reliance of foreign law "patently false." Discussing Sessions's criticism of Nathan's mixed review from the American Bar Association of "Majority Qualified, Minority Not Qualified," he noted that more than 30 nominees of President George W. Bush with the same rating were approved by the Senate.

Schumer then asked: "Are we gonna have a different standard for Ali Nathan than for other judges?"

Schumer concluded by noting that "all the law clerks she served with" -- including those who had clerked for more conservative justices like Justice Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor -- supported the nomination.

A little past 2 p.m., the vote started. At 2:25 p.m., Sen. Bernie Sanders (I-Vt.) was presiding over the chamber and announced the vote of 48-44 and stated that the nomination was confirmed.

Despite the vote count, Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School who is a significant Obama supporter and has known Nathan for years as both a colleague and a friend, looked at the day with optimism. 

"It reaffirms my faith in government to have a President who nominates an individual as extraordinary as Ali Nathan to the federal bench and a Senate that sees the wisdom in confirming her," he told Metro Weekly. "The fair and evenhanded administration of justice has received another champion today."

In a statement issued after the vote, Human Rights Campaign president Joe Solonese said, "We commend the Senate for their important vote today, confirming Alison Nathan to the U.S. District Court for the Southern District of New York. Ms. Nathan's demonstrated intellect and dedication to public service is a model of achievement."

He added, "She will join Judges Deborah Batts and Paul Oetken in the Southern District of New York as the only openly lesbian or gay federal judges. We look forward to the day when the makeup of the entire federal bench truly represents the diverse American public."

[This post was updated and edited through 3:45 p.m. - Ed.]

Today, in the 28th House District in Colorado, a little bit of history is being made as Brian Carroll announces his candidacy for the 2012 election for the seat. An Army veteran still serving in the Colorado National Guard, Carroll appears to be the first out gay servicemember to run for office after the repeal of "Don't Ask, Don't Tell."

According to a news release announcing his candidacy, Carroll served two tours in Afghanistan and one Iraq with Army Special Forces Information Management Division, Special Operations Command. After six years of active duty, Carroll returned to Colorado and joined the Colorado Army National Guard, 19th Special Forces Group.

In the release, Carroll noted, "As far as I know I am the first out Veteran and active National Guardsman in the country to officially run for office since the repeal of 'Don't Ask, Don't Tell.'" 

Under the process engaged after the enactment of the Don't Ask, Don't Tell Repeal Act, DADT officially ended -- the law that mandated the policy was repealed -- on Sept. 20.

After returning to Colorado, Carroll worked in the office of Sen. Mark Udall (D-Colo.) as a veterans affairs specialist, where he assisted military and veteran constituents with cases pertaining to healthcare, housing and the Department of Veterans Affairs and became active in the repeal process of DADT.

"I am proud of the work that I did fighting alongside Mark Udall and the thousands of Service Members nationwide to repeal 'Don't Ask, Don't Tell.' I will continue to fight for equality, serving my country and our great state of Colorado in the Army National Guard while exercising my right to run for public office," he said in the statement. "I look forward to a robust and energetic campaign where I will have the opportunity to engage the voters and constituents of House District 28 to hear their concerns and hopes for a better future.

Due to redistricting, two current state representatives will be running allowing with Carroll and any other challengers for the seat: state Reps. Ken Summers (R) and Andy Kerr (D). Under the state's term-limit law, however, both Summers and Kerr could only serve one more term.

Although Carroll appears to be the first candidate who can be both out and a servicemember and not risk discharge from the military, he is not alone among gay people who have served in the military and run for office.

Anthony Woods, a U.S. Army veteran who served in Iraq, was a West Point graduate who served with distinction in the Army but was discharged under DADT in 2008. He ran for Congress in a California special election in September 2009 to fill the vacancy created when Ellen Tauscher resigned from the House to join the State Department. Although the Democrat lost to the then-lieutenant governor, Rep. John Garamendi (D-Calif.), his race garnered significant positive media attention.

A decade earlier, in 1999, a Republican in the Arizona state house, then-Rep. Steve May (R), came out in a speech on the floor of the state house. Still serving in the U.S. Army Reserve at the time, the Army began discharge proceedings against him. After he challenged the discharge recommendation of an Army panel, the Army dropped the case and reached a settlement allowing May to serve out his term as a reservist until May 2001.

[UPDATE @ 4:30P: Log Cabin Republicans deputy executive director Christian Berle pointed to two others who fit the bill as out gay servicemembers running for office.

Steve Keblish, who is a county legislator in Herkimer County, New York, running for re-election. According to his Victory Fund-endorsement biography, he has served in the military since 2005, including deployment to Afghanistan, and his current role is Captain of the Military Police Battalion in Auburn, N.Y. Keblish, however, lost the Republican and Conservative primaries on Sept. 13 -- before the end of DADT -- and told the Herkimer Telegram the next day that, even though he would still be appearing on the Independence party line ballot, he had not decided about what would be happening with his campaign.

Patrick Forrest is running for state Senate in Virginia. His campaign biography states that he is an attorney, Coast Guard Officer and former senior official at the U.S. Department of Homeland Security. He is a graduate of the Virginia Military Institute. His biography states that he served until March 2011 as a senior official at DHS, working as lead counsel for the E-Verify program and as associate chief at the Office of Legislative Affairs at U.S. Citizenship and Immigration Services.]

[Photo: Carroll (Photos courtesy of Colorado for Carroll; use of his military rank, job titles and photographs in uniform does not imply endorsement from the Department of Defense or the U.S. Army.)]

[Photo: President Barack Obama greets departing Associate Counsel to the President Alison J. "Ali" Nathan, left, Meg Satterthwaite, and their twin sons Oliver and Nathan, in the Outer Oval Office on July 7, 2010. (Official White House Photo by Pete Souza.)]

Today, the U.S. Senate is slated to vote on the nomination of Alison Nathan for a seat on the U.S. District Court for the Southern District of New York.

[UPDATE @ 12:30P: C-SPAN reports that roll call votes on judicial nominations, including Nathan, are expected beginning about 2 p.m.]

Nathan, an out lesbian, would be the second out lesbian federal judge with lifetime tenure in the country if confirmed, joining U.S. District Court Judge Deborah Batts of the Southern District of New York. Also on that court, which is located in Manhattan, is U.S. District Court Judge J. Paul Oetken. Oetken was nominated by President Obama and confirmed by the Senate for the judgeship earlier this year and currently is the only out gay male judge serving in the federal judiciary.

Per an agreement announced on Sept. 26 between Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.), a group of four judicial nominees were to have their nominations considered for a vote as soon as Oct. 11. The first of those, Jane Triche-Milazzo, had her nomination for a seat on the U.S. District Court for the Eastern District of Louisiana confirmed by the Senate on Oct. 11. The Senate is slated to vote on the other three nominations today following a "period of morning business" that begins at 10 a.m.

President Obama nominated Nathan, who had served as a White House associate counsel earlier in the administration, for the federal judgeship on March 31. Following a hearing on June 8, the Senate Judiciary Committee on July 14 favorably reported her nomination to the full Senate for a vote.

In addition to Nathan, the Senate is due to vote on the nomination of Katherine Forrest for the U.S. District Court for the Southern District of New York and Susan Hickey for the U.S. District Court for the Western District of Arkansas.

Michael Fitzgerald, another of Obama's out LGBT judicial nominees, has been nominated to serve in the U.S. District Court for the Central District of California. The judiciary committee held a hearing on his nomination on Oct. 4, but it has not yet acted to report the nomination to the full Senate. The final out LGBT judicial nominee, Edward DuMont, was nominated in April 2010 for a seat on the U.S. Court of Appeals for the Federal Circuit and has been waiting longer than any of Obama's judicial nominees -- LGBT or not -- for a hearing.

Today, without comment, the U.S. Supreme Court declined to hear a case challenging Louisiana's policy that prevents unmarried adoptive parents from both being listed on a child's birth certificate. In this case, Adar v. Smith, a gay couple, Oren Adar and Mickey Smith, had adopted a child and were told by the registrar -- Darlene Smith -- that both men could not be listed on the birth certificate.

Although they had won at the trial court and on their initial appeal, a full panel of the U.S. Court of Appeals for the Fifth Circuit had reversed the decision. The couple were represented by Lambda Legal, which had sought review of the case by the Supreme Court earlier this year.

Kenneth D. Upton, the supervising senior staff attorney in Lambda Legal's South Central Regional Office in Dallas, said in a statement, "By denying this writ, the Supreme Court is leaving untouched a dangerous Fifth Circuit Court of Appeals ruling that carves out an exception to the Full Faith and Credit Clause of the U.S. Constitution and to the uniformly recognized respect for judgments that states have come to rely upon.

"This decision leaves adopted children and their parents vulnerable in their interactions with officials from other states. More particularly, this decision leaves a child without an accurate birth certificate listing both his parents," Upton said. "This issue now moves into the legislative arena.  We need to push for a change in Louisiana state policy in order to stabilize and standardize respect for parent-child relationships for all adoptive children."

Lambda Legal received assistance in the case from Paul Smith of Jenner & Block in Washington, D.C., and Regina O. Matthews and Spencer R. Doody of Martzell & Bickford in New Orleans.

For law dorks, read below the jump for a selection from Lambda Legal's certiorari petition addressing the circuit conflict that it saw created by the Fifth Circuit en banc opinion.

California Gov. Jerry Brown (D) signed two pro-transgender equality bills into law on Oct. 9. Masen Davis, the executive director of the Transgender Law Center, announced on Twitter that Brown had signed the two bills into law, both of which had been advocated for this session by the organization.

From the TLC news release:

Governor Brown just signed two important transgender rights bills into law.  The first, the Gender Nondiscrimination Act, brings transgender rights out of the closet in California - making "gender identity and expression" its own protected category at work, at school, in housing, at public accommodations and in other settings. The second, the Vital Statistics Modernization Act, makes it easier for transgender people to get a court-ordered gender change and updated birth certificate.  It's a big day for transgender folks in California!

A news release from Brown's office confirms this news, noting that the governor signed several bills, including:

• AB 433 by Assemblymember Bonnie Lowenthal (D-Long Beach) – Birth certificates: issuance.

• AB 887 by Assemblymember Toni G. Atkins (D-San Diego) – Gender.

According to Assemblymember Atkins's news release announcing her introduction of the bill, prior to A.B. 887's passage, "California laws protect people from discrimination based on gender identity and gender expression [because] California non-discrimination laws define 'gender' to mean sex including a person's gender identity (how they seem themselves) and gender expression (how other people see them)."

However, she also noted:

In 2009, the Transgender Law Center released its "State of Transgender California" report. The report revealed overwhelmingly that Californians who experience discrimination based on gender identity and gender expression at work or elsewhere often times do not file complaints because they are unaware that they are protected as a result of confusing non-discrimination laws.

As such, the bill was proposed because, she writes, "Existing non-discrimination laws are confusing and vague for employers, housing authorities and others who bear the responsibility of ensuring that the laws are enforced. Therefore the harms caused by discrimination can be reduced by simply using language that is direct and easily understood."

[UPDATE: Brown, early in the morning on Oct. 10, also signed one other bill into law advocated for by LGBT advocates, while vetoing a fourth bill. Brown, according to his office's news release, signed:

• AB 9 by Assemblymember Tom Ammiano (D-San Francisco) – Pupil rights: bullying.

More information on the bill, called Seth's Law, can be found at Equality California's website.

However, he vetoed:

• SB 416 by Senator Christine Kehoe (D-San Diego) – Health: survey.

In a veto message, Brown wrote that determining content of state health surveys "is better handled" by the "rigorous and thoughtful process" that exists for making those determinations, rather than "the Legislature and Governor." More information about the bill can be found at Equality California's website.]

The federal government asked U.S. District Court for the District of Columbia Chief Judge Royce Lamberth today to stop a magistrate judge in the court from allowing former Lt. Dan Choi to proceed with a defense of selective or vindictive prosecution in his trial stemming from a 2010 arrest at the White House.

Lawyers representing the government and Choi appeared in federal court today before Lamberth to argue whether Lamberth should issue a writ of mandamus prohibiting Magistrate Judge John Facciola from allowing Choi’s lawyers to pursue a possible defense of selective or vindictive prosecution on the charge he faces: failure to obey a lawful order by a police officer. 

Choi was arrested in November 2010 after he and 12 others chained themselves to the White House fence while protesting the military's now-defunct "Don't Ask, Don't Tell" policy, which prevented gay and lesbian servicemembers from serving openly.

Assistant U.S. Attorney Stratton Strand argued that Facciola had erred in finding prima facie evidence that would allow Choi’s lawyers, Robert Feldman and Norman Kent, to pursue a defense of selective or vindictive prosecution. Strand said that one of the reasons the decision was in error was because, since the trial already had begun, double jeopardy would prevent the government from re-trying Choi if the case were dismissed or if Facciola acquitted Choi prior to issuing a final verdict.

Strand also argued that, while he had no evidence of precedent, Lamberth had jurisdiction to issue the writ against Facciola due to the structure of the district and magistrates courts.

Feldman argued that evidence and testimony from the trial had revealed that the government specifically went after Choi, monitoring his actions, suggesting possible statutes under which they could prosecute him and following through by trying him in federal court for a violation similar to two prior incidents that were handled differently. Following those other incidents, Choi was charged in D.C. Superior Court, and the charges eventually were dropped.

When asked by Lamberth why he didn't file a defense of selective or vindictive prosecution beforehand, Feldman argued that Facciola had said he didn't need to do so and that subsequent evidence emerged from the trial that allowed Facciola, acting as both judge and jury, to consider constitutional issues and determine whether selective prosecution could be used as a possible defense.

Outside the court, Choi's lawyers expressed confidence that Lamberth would rule in their favor, thereby allowing the trial to continue under Facciola without specific instructions to disallow a defense of selective or vindictive prosecution. Feldman said he expected Lamberth to issue his decision within the next 10 days.

"We are totally confident that he will rule in Lt. Choi's favor," Feldman said.

If Lamberth rules in the government's favor and issues the writ, it means that Facciola will receive instructions not to allow Choi's lawyers to pursue selective prosecution as a defense. Such a ruling would prevent Choi's lawyers from being able to request more information, documents or official correspondence related to Choi’s arrest and the decision to prosecute him in federal court to help prove a vindictive or selective prosecution claim.  

If Lamberth rules not to limit Facciola by refusing to issue the writ, Choi's lawyers said that the trial can either move forward, Facciola can permit the government to dismiss the case against Choi, or Facciola can acquit Choi.

When asked what outcome he preferred once the trial returned to Facciola, Choi said he would prefer the trial move forward and that he be found not guilty, because he does not believe he violated any laws or lawful order. He also said he would like an apology for the government’s decision to prosecute him.

"I think it's pretty clear that the government has something to hide," Choi said. "So whether we are allowed an acquittal based on selective prosecution or not, they've already shown their hand that there was selective prosecution."

Feldman said he was even more confident of the final outcome of the trial.

"As we've said from the beginning, Dan Choi is innocent," he said. "And Judge Facciola will agree. Of that, I'm more than confident. I'm going to say, for the record, it will happen."

Officials from the U.S. Attorneys Office at the hearing did not comment on the proceedings, and a spokesman later declined comment.

[Photo: Feldman (left) and Choi (Photo by John Riley.)]

[Photo: Gautam Raghavan, the new White House "point of contact" on LGBT issues, is an associate director of public engagement in the White House Office of Public Engagement and Intergovernmental Affairs. (Photo courtesy of the White House.)]

Today, the White House made formal what Metro Weekly first reported on Sept. 23: Gautam Raghavan, the former deputy White House liaison at the Department of Defense, is the new LGBT liaison in the White House Office of Public Engagement.

White House spokesman Shin Inouye told Metro Weekly today in a statement, "The White House is pleased to welcome Gautam Raghavan as an Associate Director of Public Engagement in the Office of Public Engagement and Intergovernmental Affairs."

Inouye said that Raghavan "will serve as the point of contact for the LGBT community in his new role." 

Raghavan takes over for Brian Bond, who served as deputy director of OPE and was the LGBT liaison in the first years of the Obama administration. Bond moved this summer to the Democratic National Committee to be the director of constituency outreach. Stephanie Valencia took over the deputy director role, and Raul Alvillar, who has been associate director for public engagement at the Office of the Vice President, served as the interim LGBT liaison before today's announcement.

"Don't Ask, Don't Tell" repeal advocates tell Metro Weekly that Raghavan's transition to his new role at the White House likely will be quite smooth, as they saw him at work in a similar role at the Pentagon. According to the White House, Raghavan was the outreach lead for the Defense Department's DADT repeal comprehensive review working group.

Nathaniel Frank, the author of Unfriendly Fire and a longtime researcher on DADT issues at the Palm Center until this past year, said today that Raghavan had coordinated multiple meetings with researchers like Frank and repeal advocates, including one meeting that took place at the Pentagon with the co-chairs of the Pentagon working group, Defense Department General Counsel Jeh Johnson and Gen. Carter Ham.

"Gautam seems to have the right personality for a job like this," Frank said. "He reached out in an even-keeled way to all interested parties and was able to communicate with everyone effectively. He clearly has knowledge about the issues that are important to the LGBT community, from my experience."

Winnie Stachelberg, the senior vice president for external affairs at the Center for American Progress praised Raghavan's work on repeal, saying, "He was the point person in the Pentagon for many of us, and was able to juggle a number of competing constituencies ... in an unbelievably competent manner and I think the results speak for themselves."

At Servicemembers Legal Defense Network, Emily Sussman, the co-director of government affairs, said, "We worked with him quite closely and quite often. We definitely look forward to working with him further now in his role in the White House on the issues we're still pushing, being an executive order for nondiscrimination based on sexual orientation and gender identity and partner benefits."

She added, of his outreach into non-DADT areas, "Although he may not be as initially high-profile as Brian [Bond], I think people should know that he's a really hard worker and understands how to get things done."

In a statement responding to the appointment, SLDN executive director Aubrey Sarvis said, "We are pleased to welcome Gautam to his new post at the White House. He is well-respected in the LGBT community, but perhaps no more than here at SLDN where we worked closely with him in his role at the Pentagon helping to build the support needed and manage the repeal process of 'Don't Ask, Don't Tell.'"

The Gay & Lesbian Victory Fund, which works to support out LGBT candidates and appointees, celebrated the news -- while pushing for more action on presidential appointments. Victory Fund vice president of communications Denis Dison told Metro Weekly, "This is an important role, and we're very happy for Gautum and look forward to working with him -- especially on ways we can help grow the number and seniority of LGBT Americans serving in the Obama administration."

Raghavan previously worked for the Obama for America campaign, the Democratic National Committee and Progressive Majority. He is a graduate of Stanford University and is completing a master's degree at George Washington University.

[Image: Michael Fitzgerald testifies before the U.S. Senate Judiciary Committee on Oct. 4, 2011.]

President Barack Obama's fourth out LGBT judicial nominee, California attorney Michael Fitzgerald, appeared before the U.S. Senate Judiciary Committee this afternoon along with three other federal trial court nominees for a brief hearing on their nominations.

Fitzgerald was nominated by Obama on July 20 for a seat on the U.S. District Court for the Central District of California.

Michael Fitzgerald received an American Bar Association rating of "unanimously well qualified." A former assistant U.S. Attorney, he currently is a lawyer with Corbin, Fitzgerald and Athey in Los Angeles.

Fitzgerald, in his opening statement, thanked the president for his nomination, as well as for the support of Sen. Barbara Boxer (D-Calif.).

Sen. Dick Durbin (D-Ill.) chaired the hearings, which he led off by asking the nominees about their view of judicial temperament. He then asked Fitzgerald specifically about a case on which he had worked earlier in his career, Buttino v. FBI.

In Fitgerald's written questionnaire provided to the committee, he described the case, writing, "[Frank] Buttino was a gay FBI special agent who was anonymously 'outed' to his Special Agent-in-Charge, which ultimately resulted in the removal of his security clearance and concomitant firing as an FBI special agent."

Buttino filed a class-action lawsuit against the Bureau, and, at Fitzgerald's request, he and his firm -- Heller, Ehrman, White & McAuliffe -- represented the class at trial. After several days of trial, the case settled, with the FBI making significant policy changes as a result.

Today, of the result Fitzgerald said, "The FBI agreed to no longer use security concerns as means to keep gays and lesbians from being hired as special agents, and Mr. Buttino's pension was restored."

Sen. Mike Lee (R-Utah) also questioned the nominee, talking about Fitzgerald's role working "personally and professionally as an activist in various political and legal causes" and asking about the "difference between advocacy and jurisprudence."

As a judge, I would respect the rule of law, I would respect the court system as a system which is trying to do justice for the litigants in front of it pursuant to the facts as they were found without any reference to the background of the litigants ... and, of course, pursuant to the binding precedent of the Supreme Court and of our circuit court."

He concluded: "I would not bring any personal or political views to bear on any of the cases that I determined as a United States district judge."

Pending any follow-up questions from committee members, the committee can vote on Fitzgerald's nomination, at which point it could go to the full Senate for a vote.

Earlier this year, U.S. District Court Judge J. Paul Oetken, an out gay attorney practicing in New York City, was nominated by Obama for the Southern District of New York, a nomination approved by the Senate in July.

This past week, Senate Majority Leader Harry Reid (D-Nev.) announced that a vote on a second out LGBT judicial nominee, Alison Nathan, would be coming in the next several weeks.

The final of the four out LGBT judicial nominees, Edward DuMont, has seen no progress on his nomination to the U.S. Court of Appeals for the Federal Circuit, even though he was the first out LGBT judicial nominee and received a rating of "unanimously well qualified" from the ABA. Originally nominated by Obama in April 2010, his nomination languished in the 111th Congress. At the end of the session, his nomination was returned to the president, who renominated DuMont on Jan. 5 in the 112th Congress.

On Oct. 1, the obligation of the federal government to pay for the House Republican leadership's defense of the Defense of Marriage Act increased from $500,000 to $750,000 -- with a new "cap" on the defense set at $1.5 million.

Those new numbers are set by a modification of the original April contract between House General Counsel Kerry Kircher and Bancroft PLLC partner Paul Clement for Bancroft to represent the House Bipartisan Legal Advisory Group in its DOMA defense.

But, per another provision in the modified agreement, the government could owe no additional funds beyond those already paid if no funds are appropriated for the defense.

Among the questions raised over the past months by some opponents of the Republican majority of the BLAG's decision to defend the 1996 marriage law in court challenges was whether Kircher had, by signing the contract, committed to payment of funds that had not been appropriated to the House General Counsel's Office.

The opposition led to a complaint filed with the Office of Congressional Ethics in June by Citizens for Responsibility & Ethics in Washington, alleging a violation of the Antideficiency Act and of House Rules -- charges that House Speaker John Boehner (R-Ohio)'s office strongly denied.

In addition to the changed "cap" on the fees that Bancroft can accrue -- a "cap" that, as discussed at Metro Weekly in April, can be raised by a similar modification at any time in the future -- the second change to the contract makes the obligations and liability of the general counsel to pay the fees under the contract contingent on money to pay those fees being appropriated to pay for them.

The relevant portion of the contract modification, which was released today by House Democrats who have opposed BLAG's defense of DOMA, reads, "It is further understood and agreed that the General Counsel's obligation under this Agreement is contingent upon the availability of appropriated funds from which payments pursuant to this Agreement can be made; [and] that no legal liability on the part of the General Counsel shall arise until such appropriated funds are made available to the General Counsel[.]"

A spokesman for Boehner, one of the three Republican members of BLAG, directed questions about the contract change to the House Administration Committee, the chairman of which -- Rep. Daniel Lungren (R-Calif.) -- approved the contract and modification.

Sally Wood, a House Administration Committee spokeswoman, said the $1.5 million "cap" in the modification is "a good-faith effort" to account "for all of the costs related to multiple cases throughout the U.S."

As to the contingencies on the obligations and liability of the general counsel, Wood said, "This is simply a standard clause that assures that the general counsel does not obligate funds that have not been appropriated."

Under the House Gift Rule, a House member or employee "may not accept anything of value" unless it meets one of the exceptions provided for under the rule. This rule would appear to prohibit Kircher from allowing Bancroft to provide the legal services under the contract for free or at a reduced rate.

The contract at issue -- first signed with King & Spalding and then with Bancroft -- was entered into after the Department of Justice informed Boehner on Feb. 23 that it would no longer be defending Section 3 of DOMA -- the federal definition of marriage -- in court challenges.

Most of the initial responses from Democratic and LGBT leaders focused on the increased "cap" on the DOMA defense.

Rep. Jerrold Nadler (D-N.Y.) is the lead sponsor of the bill to repeal DOMA, the Respect for Marriage Act. He issued a statement about the news, saying, "In the current climate of Republican-sponsored deficit hysteria, draconian spending cuts, and an ongoing recession in which Americans are still awaiting congressional leadership on jobs and mortgage relief, it is shocking and supremely hypocritical for Republican Leadership to spend additional taxpayer dollars on the unwarranted, unconstitutional and unnecessary defense of DOMA."

He added, "It seems that the only jobs program the House is creating is one for high-priced lawyers to defend an unconscionable law."

On the "unconscionable" front, the spokeman for House Minority Leader Nancy Pelosi (D-Calif.) also slammed the move. Spokesman Drew Hammill said in a statement, "It is absolutely unconscionable that Speaker Boehner is tripling the cost for his legal boondoggle to defend the indefensible Defense of Marriage Act. At a time when Americans are hurting and job creation should be the top priority, it just shows how out of touch House Republicans have become that they would spend up to $1.5 million dollars to defend discrimination in our country."

Human Rights Campaign president Joe Solmonese said in a statement, "There seems to be no limit to how much taxpayer money the House Republican leadership is willing to spend to keep this discriminatory law on the books. The Defense of Marriage Act singles out same-sex couples for unfair treatment and no amount of money can overcome the fact that it flies in the face of our cherished constitutional principles."

Freedom to Marry president Evan Wolfson pointed in his statement to the fact that gay and lesbian Americans are paying for DOMA's defense: "At a time when Americans are struggling through one of the worst economies in our nation's history, it is shameful that House Republicans are now tripling the spending of tax dollars -- including those of gay and lesbian Americans -- to defend a discriminatory anti-gay law that makes it even harder for committed gay and lesbian couples to take care of and protect their loved ones."

Read the contract modification: Contract Modification-DOMA--9-30-11.pdf

[Photo, above right: Boehner. Photo, above left: Lungren.]

Besides President Obama's keynote address at the Human Rights Campaign's 15th annual national dinner, the two key political speeches came from a representative from Wisconsin and a mayor from New York.

Rep. Tammy Baldwin (D-Wisc.) told the crowd -- to thunderous applause -- "I'm Tammy Baldwin, and I'm running for Senate."

Baldwin, who was introduced by longtime HRC board of director Bruce Bastian, has announced that she is seeking the Democratic nomination in 2012 for the Senate seat currently held by Sen. Herb Kohl (D-Wisc.), who is retiring at the end of this term.

Baldwin told the crowd, "I come from a state that isn't fully blue or red, but somewhere in the middle.

"To be perfectly honest with you," she said, "most of the people that I represent couldn't care less that I'm gay ... They care about making sure that they can find a good job."

Referencing successes -- including marriage equality in New York and the end of "Don't Ask, Don't Tell," Baldwin said, "Together, we have made this country more just and safer for all Americans to be who they are."

New York City Mayor Michael Bloomberg (Ind.) accepted HRC's National Ally for Equality Award for his work in support of marriage equality in New York.

After being introduced by Sarah Jessica Parker, Bloomberg told the crowd that "[w]hen two people commit their lives to one another, no government should stand in the way."

The mayor, who previously was elected as a Republican, also said, "Marriage equality is fundamentally consistent with both parties' principles."

Watch Baldwin's speech:

Watch Bloomberg's speech:

[Photo: President Obama addresses the 15th annual Human Rights Campaign national dinner. (Photo by Chris Geidner.)]

Tonight, President Barack Obama addressed the Human Rights Campaign for the second time in his presidency, speaking at the Washington Convention Center to a crowd of approximately 3,000 people.

In one of the strongest attacks yet from the president against his potential Republican 2012 challengers, he referenced the failure of any of them to condemn audience members at a recent debate who booed a gay servicemember, telling them, "You want to be Commander-in-Chief? You can start by standing up for the men and women who wear the uniform of the United States, even when it’s not politically convenient."

The president did not, however, finish "evolving" to a position in support of full marriage equality, as some LGBT activists had hoped. Nor did the president mention by name the states -- Minnesota and North Carolina -- that are slated to have constitutional marriage amendments on their ballots in 2012.

After detailing his administration's accomplishments, from the passage of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act to the hospital visitation executive order to the end of the HIV travel ban to the repeal of "Don't Ask, Don't Tell," Obama came the closest he came in the night to talking about marriage. He told the crowd:

I vowed to keep up the fight against the so-called Defense of Marriage Act.  There’s a bill to repeal this discriminatory law in Congress, and I want to see that passed.  But until we reach that day, my administration is no longer defending DOMA in the courts.  I believe the law runs counter to the Constitution, and it’s time for it to end once and for all.  It should join “don’t ask, don’t tell” in the history books.

Then, in his only nod to the state constitutional marriage amendments, he talked about those who want to "turn the clock back," saying:

And I don’t have to tell you, there are those who don't want to just stand in our way but want to turn the clock back; who want to return to the days when gay people couldn’t serve their country openly; who reject the progress that we’ve made; who, as we speak, are looking to enshrine discrimination into state laws and constitutions -- efforts that we’ve got to work hard to oppose, because that’s not what America should be about.

And, finally, referencing the recent GOP debate, Obama said, to much applause:

We don’t believe in a small America.  We don’t believe in the kind of smallness that says it’s okay for a stage full of political leaders -- one of whom could end up being the President of the United States -- being silent when an American soldier is booed. We don’t believe in that.  We don’t believe in standing silent when that happens. We don’t believe in them being silent since. You want to be Commander-in-Chief?  You can start by standing up for the men and women who wear the uniform of the United States, even when it’s not politically convenient.

Look for more coverage from Metro Weekly -- including video and photos -- in the coming days.

Read the president's full remarks below the jump.