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New report undermines officers’ letter supporting ‘Don’t Ask’

Some signers involved in career-ending scandals

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U.S. Sen. John McCain (Blade photo by Michael Key)

A number of high-ranking military officers whose names appear on a well-publicized letter supporting “Don’t Ask, Don’t Tell” were involved in career-ending scandals or have said the letter doesn’t represent their views, according to Servicemembers United.

The organization’s preliminary investigation of 200 names on the letter, which more than 1,100 flag and general officers signed, reveals new information that could undermine the document supporting the 1993 law barring gays from serving openly in the military.

Alex Nicholson, executive director of Servicemembers United, said his organization’s report “speaks to an overall lack of expertise” the signers have on the views of service members of the 21st century military.

Elaine Donnelly, president of the Center of Military Readiness, gathered the names for the letter, which was first published last year. She didn’t respond to multiple requests from DC Agenda to comment on Servicemembers United’s report.

Supporters of “Don’t Ask, Don’t Tell” have often cited the letter as evidence of military support for keeping the law on the books. Sen. John McCain (R-Ariz.), an opponent of repeal, held up the letter during a Senate hearing on “Don’t Ask, Don’t Tell” last month.

“I hope you’ll pay attention to the views of over 1,000 retired flag and general officers,” McCain told Defense Secretary Robert Gates at the time regarding the study of “Don’t Ask, Don’t Tell” that’s underway at the Pentagon.

But Servicemembers United’s report — titled, “Flag and General Officers for the Military: A Closer Look” — sheds new light on the letter. Nicholson said one of the most striking discoveries was the age of many signers.

“Only a small fraction of these officers have even served in the military during the ‘Don’t Ask, Don’t Tell’ period, much less in the 21st century military,” Nicholson said. “How can these flag officers honestly claim to know how accepting and tolerant 18- and 21-year-olds are today when most of them haven’t been that age themselves since the 1940s and 1950s?”

The report found the average age among is the officers is 74, the oldest living signer is 98, and several signers died in the time since the document was published.

At least one signer, Gen. Louis Menetrey, was deceased when the letter was published and didn’t sign the document himself. According to a footnote on the letter, his wife signed the document for him after his death using power of attorney — six years after Alzheimer’s disease robbed him of the ability to communicate.

Servicemembers United findings also indicate the letter doesn’t represent the viewpoints of some officers who purportedly signed it. One signer said they no longer want to be a part of the letter, writing to the organization, “I do not wish to be on any list regarding this issue.”

Others said they never agreed to sign in the first place. One general wrote, “I never agreed. To represent either side of this issue.” Another wrote, “I do not remember being asked about this issue.”

DC Agenda independently found one general who acknowledged signing the letter, but said he now believes gays should be allowed to serve in the armed forces so long as they adhere to the code of conduct.

“I do not believe there should be any limitations based on sexual orientation,” said the general, who asked not to be identified.

In addition to signers who say the letter doesn’t represent their views, others were involved in scandals tarnishing their careers. Nicholson said the number of scandals in which signers have been involved “jumps out” as a major component of the report, adding some officers made “heinous failures of judgment and leadership.”

The report identifies seven officers that were involved in such incidents:

• Brig. Gen. Eddie Cain was in the early 1990s director of the Pentagon agency in charge of the anthrax vaccine administered to troops and testified before Congress the vaccine was safe and tested. Later reports showed it was neither. Cain was revealed to have known his testimony was inaccurate, and wrote in personal e-mails that if Congress found out, he’d be “in big-time trouble.”

• Brig. Gen. David Boland in 1994 was executive director of a “boot camp” for at-risk children at Camp Wiecker, Conn., that was mired in problems and later discontinued. According to the New York Times, gang recruitment, sexual relations between students and faculty, drug use, gambling rings and widespread violence and fighting — including one fight that resulted in 14 arrests — took place at Camp Wiecker under Boland’s supervision. Boland later stepped down to “pursue other interests.”

• Rear Adm. Riley Mixson in 1993 received a career-ending letter of censure from then-Navy Secretary John Dalton for involvement in the 1991 Tailhook scandal, during which he failed to take action against allegations of sexual misconduct. According to the New York Times, “Mixson was cited for failing to take action when he saw a woman drink from a dispenser made to look like a rhinoceros’ penis and men shaving women’s legs.”

• Gen. Carl Mundy made several statements in 1993 on CBS’ “60 Minutes” that racial minority soldiers “don’t swim as well” or perform other duties as well as white troops. He also once unilaterally banned married recruits from joining the Marine Corps, a move Defense Secretary Les Aspin rescinded the following week.

• Lt. Gen. Fred McCorkle was head of Marine Corps Aviation in the late 1990s, during the design and test phase of the V-22 Osprey. He oversaw cost overruns and allegedly falsified records — all while praising the aircraft. McCorkle now works for and sits on the boards of several companies that manufacture Osprey components.

• Brig. Gen. Gary Pendleton was named in a lawsuit in 2008 for unlawfully discriminating on the basis of race against an employee in awarding her a lower annual bonus than her co-workers. Pendleton was also said to have fired the employee in retaliation for her complaints.

• Brig. Gen. Darryl Powell oversaw in 1985 a spike in malpractice lawsuits as commander of Madigan Army Medical Center. In one case, a woman was injected with formaldehyde instead of medication, killing her and her unborn child.

Nicholson said even with these scandals, the majority of the officers on the letter served with distinction. Still, he questioned whether the more than 1,100 officers who signed the letter understand the attitudes and beliefs of the young people in service today.

“It is simply unreasonable to think that any of them can be experts on the new generation [of] youth that make up the vast majority of the military today — the generation of iPhones, Facebook, and acceptance of those who are different,” he said.

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New Supreme Court term includes critical LGBTQ case with ‘terrifying’ consequences

Business owner seeks to decline services for same-sex weddings

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The U.S. Supreme Court is to set consider the case of 303 Creative, which seeks to refuse design services for same-sex weddings. (Blade file photo by Michael Key)

The U.S. Supreme Court, after a decision overturning Roe v. Wade that still leaves many reeling, is starting a new term with justices slated to revisit the issue of LGBTQ rights.

In 303 Creative v. Elenis, the court will return to the issue of whether or not providers of custom-made goods can refuse service to LGBTQ customers on First Amendment grounds. In this case, the business owner is Lorie Smith, a website designer in Colorado who wants to opt out of providing her graphic design services for same-sex weddings despite the civil rights law in her state.

Jennifer Pizer, acting chief legal officer of Lambda Legal, said in an interview with the Blade, “it’s not too much to say an immeasurably huge amount is at stake” for LGBTQ people depending on the outcome of the case.

“This contrived idea that making custom goods, or offering a custom service, somehow tacitly conveys an endorsement of the person — if that were to be accepted, that would be a profound change in the law,” Pizer said. “And the stakes are very high because there are no practical, obvious, principled ways to limit that kind of an exception, and if the law isn’t clear in this regard, then the people who are at risk of experiencing discrimination have no security, no effective protection by having a non-discrimination laws, because at any moment, as one makes their way through the commercial marketplace, you don’t know whether a particular business person is going to refuse to serve you.”

The upcoming arguments and decision in the 303 Creative case mark a return to LGBTQ rights for the Supreme Court, which had no lawsuit to directly address the issue in its previous term, although many argued the Dobbs decision put LGBTQ rights in peril and threatened access to abortion for LGBTQ people.

And yet, the 303 Creative case is similar to other cases the Supreme Court has previously heard on the providers of services seeking the right to deny services based on First Amendment grounds, such as Masterpiece Cakeshop and Fulton v. City of Philadelphia. In both of those cases, however, the court issued narrow rulings on the facts of litigation, declining to issue sweeping rulings either upholding non-discrimination principles or First Amendment exemptions.

Pizer, who signed one of the friend-of-the-court briefs in opposition to 303 Creative, said the case is “similar in the goals” of the Masterpiece Cakeshop litigation on the basis they both seek exemptions to the same non-discrimination law that governs their business, the Colorado Anti-Discrimination Act, or CADA, and seek “to further the social and political argument that they should be free to refuse same-sex couples or LGBTQ people in particular.”

“So there’s the legal goal, and it connects to the social and political goals and in that sense, it’s the same as Masterpiece,” Pizer said. “And so there are multiple problems with it again, as a legal matter, but also as a social matter, because as with the religion argument, it flows from the idea that having something to do with us is endorsing us.”

One difference: the Masterpiece Cakeshop litigation stemmed from an act of refusal of service after owner, Jack Phillips, declined to make a custom-made wedding cake for a same-sex couple for their upcoming wedding. No act of discrimination in the past, however, is present in the 303 Creative case. The owner seeks to put on her website a disclaimer she won’t provide services for same-sex weddings, signaling an intent to discriminate against same-sex couples rather than having done so.

As such, expect issues of standing — whether or not either party is personally aggrieved and able bring to a lawsuit — to be hashed out in arguments as well as whether the litigation is ripe for review as justices consider the case. It’s not hard to see U.S. Chief Justice John Roberts, who has sought to lead the court to reach less sweeping decisions (sometimes successfully, and sometimes in the Dobbs case not successfully) to push for a decision along these lines.

Another key difference: The 303 Creative case hinges on the argument of freedom of speech as opposed to the two-fold argument of freedom of speech and freedom of religious exercise in the Masterpiece Cakeshop litigation. Although 303 Creative requested in its petition to the Supreme Court review of both issues of speech and religion, justices elected only to take up the issue of free speech in granting a writ of certiorari (or agreement to take up a case). Justices also declined to accept another question in the petition request of review of the 1990 precedent in Smith v. Employment Division, which concluded states can enforce neutral generally applicable laws on citizens with religious objections without violating the First Amendment.

Representing 303 Creative in the lawsuit is Alliance Defending Freedom, a law firm that has sought to undermine civil rights laws for LGBTQ people with litigation seeking exemptions based on the First Amendment, such as the Masterpiece Cakeshop case.

Kristen Waggoner, president of Alliance Defending Freedom, wrote in a Sept. 12 legal brief signed by her and other attorneys that a decision in favor of 303 Creative boils down to a clear-cut violation of the First Amendment.

“Colorado and the United States still contend that CADA only regulates sales transactions,” the brief says. “But their cases do not apply because they involve non-expressive activities: selling BBQ, firing employees, restricting school attendance, limiting club memberships, and providing room access. Colorado’s own cases agree that the government may not use public-accommodation laws to affect a commercial actor’s speech.”

Pizer, however, pushed back strongly on the idea a decision in favor of 303 Creative would be as focused as Alliance Defending Freedom purports it would be, arguing it could open the door to widespread discrimination against LGBTQ people.

“One way to put it is art tends to be in the eye of the beholder,” Pizer said. “Is something of a craft, or is it art? I feel like I’m channeling Lily Tomlin. Remember ‘soup and art’? We have had an understanding that whether something is beautiful or not is not the determining factor about whether something is protected as artistic expression. There’s a legal test that recognizes if this is speech, whose speech is it, whose message is it? Would anyone who was hearing the speech or seeing the message understand it to be the message of the customer or of the merchants or craftsmen or business person?”

Despite the implications in the case for LGBTQ rights, 303 Creative may have supporters among LGBTQ people who consider themselves proponents of free speech.

One joint friend-of-the-court brief before the Supreme Court, written by Dale Carpenter, a law professor at Southern Methodist University who’s written in favor of LGBTQ rights, and Eugene Volokh, a First Amendment legal scholar at the University of California, Los Angeles, argues the case is an opportunity to affirm the First Amendment applies to goods and services that are uniquely expressive.

“Distinguishing expressive from non-expressive products in some contexts might be hard, but the Tenth Circuit agreed that Smith’s product does not present a hard case,” the brief says. “Yet that court (and Colorado) declined to recognize any exemption for products constituting speech. The Tenth Circuit has effectively recognized a state interest in subjecting the creation of speech itself to antidiscrimination laws.”

Oral arguments in the case aren’t yet set, but may be announced soon. Set to defend the state of Colorado and enforcement of its non-discrimination law in the case is Colorado Solicitor General Eric Reuel Olson. Just this week, the U.S. Supreme Court announced it would grant the request to the U.S. solicitor general to present arguments before the justices on behalf of the Biden administration.

With a 6-3 conservative majority on the court that has recently scrapped the super-precedent guaranteeing the right to abortion, supporters of LGBTQ rights may think the outcome of the case is all but lost, especially amid widespread fears same-sex marriage would be next on the chopping block. After the U.S. Tenth Circuit Court of Appeals ruled against 303 Creative in the lawsuit, the simple action by the Supreme Court to grant review in the lawsuit suggests they are primed to issue a reversal and rule in favor of the company.

Pizer, acknowledging the call to action issued by LGBTQ groups in the aftermath of the Dobbs decision, conceded the current Supreme Court issuing the ruling in this case is “a terrifying prospect,” but cautioned the issue isn’t so much the makeup of the court but whether or not justices will continue down the path of abolishing case law.

“I think the question that we’re facing with respect to all of the cases or at least many of the cases that are in front of the court right now, is whether this court is going to continue on this radical sort of wrecking ball to the edifice of settled law and seemingly a goal of setting up whole new structures of what our basic legal principles are going to be. Are we going to have another term of that?” Pizer said. “And if so, that’s terrifying.”

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DOJ urged to investigate threats against providers of transition-related care

Boston-area hospital forced to evacuate in August

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A coalition of major health organizations are calling on U.S. Attorney General Merrick Garland to investigation threats against providers of gender transition-related medical care for youth, asserting ongoing hostility, including bomb threats and threats of personal violence.

The letter, dated Oct. 3, says medical providers are facing threats for providing “evidence-based health care” to youth, which has meant care for gender transitions, such as hormones, puberty blockers and gender reassignment surgery. The targets of these threats, the letter says, are children’s hospitals, academic health systems and physicians across the country.

“These coordinated attacks threaten federally protected rights to health care for patients and their families,” the letter says. “The attacks are rooted in an intentional campaign of disinformation, where a few high-profile users on social media share false and misleading information targeting individual physicians and hospitals, resulting in a rapid escalation of threats, harassment and disruption of care across multiple jurisdictions.”

The letter has an organizational signature from American Academy of Pediatrics, American Medical Association and Children’s Hospital Association, listing no names as representatives. According to the letter, the group represent 270,000 physicians and medical students and CHA represents more than 220 children’s hospitals across the country.

Major health organizations call on the U.S. Justice Department to take action weeks after Boston Children’s Hospital was forced to evacuate over a bomb threat. Authorities later arrested a woman charged with making the after she reportedly phoned in the threat and called the staff “sickos.”

The threats, the letter says, have had significant impact on providers and services to patients, including a new mother being prevented from being with her preterm infant because of a bomb threat; the need for increased security at children’s hospitals; and staffers facing “increased threats via social media – including to their personal accounts.”

A statement from organizations accompanying the letter urges social media companies — including Twitter, TikTok and Meta, which owns Facebook and Instagram — to “do more to prevent coordinated campaigns of disinformation.”

Jack Resneck, president of the American Medical Association, said in a statement accompanying the letter “individuals in all workplaces have the right to a safe environment, out of harm’s way and free of intimidation or reprisal.”

“As physicians, we condemn groups that promote hate-motivated intolerance and toxic misinformation that can lead to grave real-world violence and extremism and jeopardize patients’ health outcomes,” Resneck said.

The Washington Blade has placed a call in with the Justice Department seeking comment on the letter and the American Medical Association seeking comment on why the letter has organizational signatures as opposed to signatures from any of their representatives.

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Virginia

Youngkin makes additional appointments to Va. LGBTQ+ Advisory Board

Governor plans to revise transgender, nonbinary student guidelines

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Republican Virginia Gov. Glenn Youngkin (Washington Blade photo by Michael Key)

Republican Virginia Gov. Glenn Youngkin on Friday announced the appointment of three people to the Virginia LGBTQ+ Advisory Board.

Youngkin named Kerry Flynn, Jason Geske and Collin J. Hite to the board.

Casey Flores, the president of Log Cabin Republicans of Richmond, in July resigned from the board before his tenure was to begin. The resignation came amid growing criticism over a series of anti-LGBTQ and misogynist comments he made against Vice President Kamala Harris and U.S. Rep. Ted Lieu (D-Calif.), among others.

Youngkin last month announced he plans to revise the Virginia Department of Education’s guidelines for transgender and nonbinary students. Thousands of high school students across Virginia on Sept. 27 walked out of class in protest of the planned revision.

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