US News

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U.S. NEWS
September 13, 2010
by Rex Wockner
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Federal judge strikes down Don't Ask, Don't Tell
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U.S. District Judge Virginia Phillips in Riverside, Calif., struck down the military's Don't Ask, Don't Tell ban on open gays in the military Sept. 9.

Phillips found that the ban violates the U.S. Constitution's guarantees of free speech and due process under the First and Fifth Amendments.

"The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways," Phillips wrote in her 86-page opinion. "The Act denies homosexuals serving in the Armed Forces the right to enjoy 'intimate conduct' in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden."

Phillips said the government's contention that letting gays be open in the military harms its functioning is fully undermined by the fact that the military delays discharge of gays and lesbians who violate DADT until they return from combat deployment.

The six-year-old case, brought by the gay group Log Cabin Republicans, was heard without a jury in July.

Phillips said she will issue a permanent injunction prohibiting the military from enforcing Don't Ask, Don't Tell. She gave LCR until Sept. 16 to submit proposed language for the injunction and gave the U.S. government until Sept. 23 to respond to LCR's submission.

"She could at that point stay the injunction pending an appeal or, as Judge (Vaughn) Walker did (in the federal Prop 8 case), she could deny such a stay but grant a temporary stay to allow the government to seek a stay pending an appeal from the 9th Circuit," said Jon Davidson, legal director of Lambda Legal.

If no stay is issued, it is unclear whether Phillips' ruling would take effect nationwide or just in California's Central District of the federal courts.

"This is an historic moment and an historic ruling for the gay military community," said Servicemembers United Executive Director Alexander Nicholson, who was kicked out of the Army under DADT. "As the only named injured party in this case, I am exceedingly proud to have been able to represent all who have been impacted and had their lives ruined by this blatantly unconstitutional policy. We are finally on our way to vindication."

Gay activists responded to the ruling by calling on President Barack Obama to cease enforcement of DADT immediately and demanding that the U.S. Justice Department decline to appeal Phillips' decision.



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California Supremes rebuff Prop 8 proponents
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The forces that want to keep Proposition 8, the voter-passed constitutional amendment that re-banned same-sex marriage in California, can't catch a break.

The state Supreme Court on Sept. 7 slapped down an effort by conservative activists to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend Prop 8 in the federal case that was appealed to the 9th U.S. Circuit Court of Appeals after U.S. District Judge Vaughn Walker found in August that Prop 8 violates the U.S. Constitution.

None of the governmental entities that were sued in the federal case is interested in defending Prop 8, so the appeal to the 9th Circuit was filed by the activists who put Prop 8 on the ballot. It is unlikely, however, that the activists have "standing" to mount an appeal, since it's not their job to defend California's constitution.

Worried about such a determination, conservative forces have been trying to find some other route to assure that the 9th Circuit hears the appeal -- including pressuring defendants Brown and Schwarzenegger and pushing to add Imperial County, located in the southeast California desert, as an official defendant. The 9th Circuit will make the call on the county's long-shot effort, probably in December, when it also will take up the question of whether the pro-Prop 8 activists have standing. If they do, the 9th Circuit will then move on to hear the appeal of Walker's actual ruling.

If the activists do not have standing and Imperial County can't become a defendant, the case is over and same-sex marriage is legal again in California, unless the activists attempt to appeal the standing question to the U.S. Supreme Court. That, too, would be a long shot, many legal experts believe. They say the Supreme Court would be unlikely to conclude that displeased citizens can step into a state government's shoes to defend a state law that the state government itself refuses to defend and, indeed, believes violates the U.S. Constitution.

In rejecting the activists' latest move, the California Supreme Court denied review without comment.

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Pro-gay Mayor Daley will not seek re-election
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Strongly pro-gay Chicago Mayor Richard M. Daley, who has led the city for 21 years, announced Sept. 7 that he will not run for a seventh term.

Apart from a series of run-ins with ACT UP/Chicago in the late '80s and early '90s, Daley has been nothing short of a hero to most of the city's LGBT community.

In 1989, he became the first mayor to ride in the Chicago gay pride parade while in office.

Two years later, Daley set up the nation's first municipally sponsored Gay and Lesbian Hall of Fame and proceeded to personally hand out the awards nearly every year since.

In 1998, he redecorated the city's gay business strip, North Halsted Street, with a series of giant Flash-Gordon-esque retrofuturistic rainbow pylons. When some residents objected to the official gayification of the street, fearing for their property values, Daley thundered, "I won't let the homophobes run this city!"

He has been a supporter of same-sex marriage since 2004.

Daley went on to serve as honorary co-chair of Gay Games VII in 2006 and, in 2007, was honorary chair of the capital campaign to get the city's new LGBT center built.

At the Games' opening ceremonies, Daley said: "Members of the lesbian, gay, bisexual and transgender community have contributed to Chicago in every imaginable way -- in business, education, the arts and neighborhood development. They deserve to have the city of Chicago standing on their side, and it will continue to do so, as long as I am mayor of this great city."

Daley was pro-gay before it was cool. He decided long ago that gays make neighborhoods better, and that seemed to be that for him. He never wavered. His spoken defenses of the city's gays were straightforward and from the gut.

The mayor's conflicts with ACT UP/Chicago came to a head on Feb. 12, 1992, when he and six members of the group engaged in a shouting match at a meeting of the gay business group Chicago Professional Networking Association.

ACT UP members were angry that the city's AIDS budget allegedly had been stagnant for several years and that, due to a then-new policy of not working on Sundays, Daley had missed AIDS Walk and the gay pride parade, among other issues.

"I have been in the forefront as a public official dealing with the gay and lesbian community," Daley told the hecklers. "You don't see the governor, you don't see any other elected official. I'm right here! And I don't hide! I don't hide from the gay and lesbian community as mayor of the city of Chicago! The gay and lesbian community has a (yearly) reception not at a Hilton hotel but at the mayor's City Hall on the fifth floor (where my office is). ... And the AIDS budget each year goes up in the city of Chicago."

"That's a lie!" the protesters yelled back. "It hasn't gone up in three years! It's a million dollars. It's the same as it was! ... You're lying!"

"I'm just as concerned as anybody else," Daley said. "Don't make me one who's insincere and not concerned about the AIDS issue."

The protesters then lambasted Daley for having attended the wake of Danny Sotomayor, who had been ACT UP/Chicago's spiritual leader and perhaps Daley's fiercest critic ever. "Liar!" they shouted. "Why did you go to Danny Sotomayor's funeral? Why. Did. You. Go. To. Danny. Sotomayor's. Funeral?!"

At that point, pandemonium ensued and CPNA ejected ACT UP from the gathering.

Daley then said: "I always remember Danny Sotomayor. I went to his wake. ... I went there out of respect for him and his family. Now, he's a strong advocate. I used to see him all the time. He'd, you know, scream and yell in my face. I said: 'Danny, why you yelling at me? I'm here. This is a reception we're having. This is what we're doing. I'm not perfect. But don't try to make me the one, like, insensitive or not concerned. There's a lot of other people who won't even talk to you, won't even shake your hand, listen to you, won't understand what you're saying.'"

As for ACT UP's tactics, Daley said: "To get up and say anything, that's their right to do anything, but after a time you have to say: 'Hey, let's move on. I've heard. I've listened. We are trying to do it. It's not fast enough. You're right, it's not fast enough.'"

"You know why it's not fast enough?" he continued. "When one person dies, you're right, it's not fast enough. It's not fast enough for you or me or anybody else when you see one person die. And one thing I found out -- that we're all in this together. We're not separate, we're not higher or lower, we're all together. And these issues that confront any community confront the city of Chicago. And what we're trying to do here in our city is to truly work together."

A little more than three months after the showdown -- and an even worse blowup seven weeks later, when 40 furious AIDS activists torpedoed the mayor with vicious insults for 90 minutes as he and more than 500 gays and lesbians marched through gay neighborhoods in response to an anti-gay shooting -- Daley relented on AIDS spending, and the City Council voted 46-0 to boost funding to $3.57 million.

"This is a very serious health and emotional problem and we have to recommit ourselves," Daley said.

According to Windy City Times and the Chicago Tribune, one of the people who may run to replace Daley is Alderman Tom Tunney, who is openly gay.

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N.Y. governor signs law protecting LGBT students
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New York Gov. David Paterson signed a bill Sept. 7 protecting students in New York public schools from bias-based bullying and discrimination.

He signed the legislation in a ceremony at the Lesbian, Gay, Bisexual and Transgender Community Center in New York City.

"The Dignity for All Students Act will provide important new safeguards to ensure that schools are places where students can concentrate on learning and personal growth, not on avoiding taunting or violence," said Ross Levi, executive director of the Empire State Pride Agenda.

The new law targets harassment based on race, ethnicity, religion, disability, sexual orientation, and gender identity and expression. It requires teacher training on discouraging bias-based harassment, inclusion in coursework of discrimination and harassment awareness, and reporting of bias incidents to the state Education Department.

The law marks the first time New York state has legislated explicit protections for transgender people.

A 2007 study by the Gay, Lesbian and Straight Education Network found that 33 percent of LGBT students skip school in any given month because they fear for their safety, compared with only 4.5 percent of the general student population.

"For some young people, going to school is tantamount to a daily dose of torture," commented National Gay and Lesbian Task Force Executive Director Rea Carey. "In too many cases, harassment, taunting and abuse are allowed to go on unabated in our nation's schools. We have repeatedly seen the tragic consequences of this pervasive problem: Young people are left emotionally damaged, physically hurt, or feel they have no other option than to take their own lives out of hopelessness and despair. Youth who are lesbian, gay, bisexual or transgender -- or simply perceived to be -- are often the targets of this abuse. Today, New York said enough is enough."

Fifteen states and the District of Columbia have enacted similar laws to protect gay/lesbian and, in some cases, transgender students.

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