Politics
Obama administration seeks stay on 'Don't Ask' litigation
The Obama administration is asking a federal court to hold off on a legal challenge to “Don’t Ask, Don’t Tell” until Congress completes legislative action on the issue this year.
In a reply brief issued Wednesday in the case of Log Cabin v. United States, the Justice Department argues the U.S. District Court of Central California should defer adjudicating the case in light of recent votes in the House and Senate on measures that would lead to repeal of “Don’t Ask, Don’t Tell.”
The pending litigation, initially filed by Log Cabin Republicans in 2004, seeks to overturn “Don’t Ask, Don’t Tell” on the grounds that it violates the freedom of speech rights of gay, lesbian and bisexual service members.
The Justice Department brief that was made public Wednesday comes after U.S. District Judge Virginia Phillips ruled late last month to deny the government’s call for summary judgment in the case based on plaintiff’s lack of standing.
Download a copy of the Justice Department’s reply brief here. The deadline for the plaintiffs’ response to the brief is June 23.
In the brief, the Obama administration contends that “principles of constitutional avoidance and respect for the coequal branches of government” necessitate that the court should support a stay in proceedings until “completion of the process already undertaken by the political branches.”
“Accordingly, the Court should await the outcome of the process in which the political branches are now engaged before deciding the constitutional question presented,” the brief states.
Late last month, the House and the Senate Armed Services Committee in two separate actions voted in favor of attaching “Don’t Ask, Don’t Tell” repeal language to the fiscal year 2011 defense authorization bill.
The Justice Department argues the proceedings on the case should stop until Congress completes this action because, among other reasons, courts “should not decide constitutional issues if they can reasonably avoid doing so.”
Further, the government argues that holding off on adjudication is in the best interest of all parties involved because it would save the court from “expending considerable time and resources on pretrial motions, trial preparation, trial, and any potential post-trial briefing concerning the constitutionality of a statute that may be repealed.”
Doug NeJaime, a gay law professor at Loyola Law School, said his disagrees with the Justice Department’s argument to hold off on proceedings because the “Don’t Ask, Don’t Tell” repeal measure under consideration in Congress is a compromise that “still leaves some uncertainty.”
The measure that lawmakers have put forward wouldn’t take effect until after the Defense Department completes its study on the issue at the end of the year and the president, defense secretary and chairman of the Joint Chiefs of Staff certify that the U.S. military is ready for repeal.
“And given the way in which the [‘Don’t Ask, Don’t Tell]’ repeal has crawled up to this point, I don’t think it makes sense for a court to stay the case pending legislative action,” NeJaime said. “The constitutional questions are ripe for consideration.”
The reply brief also responds to a request from the court to address the potential application of a heightened standard of review set forth in the 2008 Ninth Circuit of Appeals ruling in Witt v. Air Force, which was related to “Don’t Ask, Don’t Tell.”
The Witt decision, which was construed to only apply to the plaintiff, determined the Pentagon needed to prove lesbian Maj. Margaret Witt’s sexual orientation was a detriment to unit cohesion in order to discharge her from the Air Force.
The Justice Department argues that the Witt standard doesn’t apply in the Log Cabin case because Witt was an as-applied challenge while Log Cabin is a facial challenge.
In a facial challenge, the plaintiff alleges that a statute is always and under all circumstances unconstitutional and therefore void. But in an as-applied challenge, a plaintiff contends that a statute may in part be unconstitutional in redress of a specific injury.
The Justice Department argues that the U.S. District Court of Central California already determined last year that the Witt standard — as an as-applied case — doesn’t apply to the Log Cabin litigation.
“There is no basis to reconsider that ruling, which was and remains correct,” the brief states.
However, should the court decide to evaluate “Don’t Ask, Don’t Tell” under a more heightened review, the Justice Department says the court already rejected a legal challenge with this standard of scrutiny against the policy for gays in the military in the 1980 case of Beller v. Middendorf.
“Because Witt does not disturb the analysis employed in Beller with respect to facial challenges, the Beller standard, not the as-applied Witt standard, is binding,” the brief states.
The Justice Department further contends it’s entitled to summary judgment in its favor because Log Cabin’s challenge “would fail under the Beller analysis.”
NeJaime said he also disagrees with Justice Department’s determination that the Beller case applies to Log Cabin’s litigation and not Witt.
Even though the Witt is an as-applied challenge, NeJaime said that doesn’t mean “the court’s analysis in Witt, and its application of a heightened standard of review, is irrelevant to the pending facial challenge.”
NeJaime noted the Witt court drew on protections afforded to LGBT people in 2003 U.S. Supreme Court case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.
He said the application of Lawrence in the Witt case is “certainly relevant” in Log Cabin’s facial challenge and “counsels against applying rational basis review, as the government urges the court to do.”
“And, furthermore, I think it casts doubt on the government’s argument that Beller, and not Witt, should govern this case,” NeJaime said. “The pre-Lawrence Beller decision must certainly be re-evaluated in light of the Lawrence decision.”
Congress
51 lawmakers sign letter to Rubio about Andry Hernández Romero
U.S. Rep. Robert Garcia (D-Calif.) spoke about gay Venezuelan asylum seeker
Forty nine members of Congress and two U.S. senators, all Democrats, signed a letter Monday to Secretary of State Marco Rubio demanding information about Andry Hernández Romero, a gay Venezuelan national who was deported to El Salvador and imprisoned in the country’s notorious Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT
“We are deeply concerned about the health and wellbeing of Mr. Hernández Romero, who left
Venezuela after experiencing discriminatory treatment because of his sexual orientation and
opposition to Venezuela’s authoritarian government,” the lawmakers wrote. They urged the State Department to facilitate his access to legal counsel and take steps to return him.
After passing a credible fear interview and while awaiting a court hearing in March, agents with U.S. Immigration and Customs Enforcement reportedly transported Hernández out of the U.S. without due process or providing evidence that he had committed any crime.
In the months since, pressure has been mounting. This past WorldPride weekend in Washington was kicked off with a rally in front of the U.S. Supreme Court and a fundraiser, both supporting Hernández and attended by high profile figures including members of Congress, like U.S. Rep. Mark Takano (D-Calif.)
U.S. Rep. Robert Garcia (D-Calif.) was among the four members who wrote to Rubio about Hernández in April. On Friday, he spoke with the Washington Blade before he and his colleagues, many more of them this time, sent the second letter to Rubio.
“There’s a lot of obviously horrible things that are happening with the asylum process and visas and international students and just the whole of our value system as it relates to immigration,” he said, which “obviously, is under attack.”
“Andry’s case, I think, is very unique and different,” the congressman continued. “There is, right now, public support that is building. I think he has captured people’s attention. And it’s growing — this is a movement that is not slowing down. He’s going to be a focal point for Pride this year. I mean, I think people around the world are interested in the story.”
Garcia said he hopes the momentum will translate to progress on requests for proof of life, adding that he was optimistic after meeting with Hernández’s legal team earlier on Friday.
“I mean, the president, Kristi Noem, Marco Rubio — any of these folks could could ask to see if just he’s alive,” the congressman said, referring to the secretary of Homeland Security, whom he grilled during a hearing last month. ICE is housed under the DHS.
“People need to remember, the most important part of this that people need to remember, this isn’t just an immigration issue,” Garcia noted. “This is a due process issue. This is an asylum case. We gave him this appointment. The United States government told him to come to his appointment, and then we sent him to another country, not his own, and locked him up with no due process. That’s the issue.”
Garcia said that so far neither he nor his colleagues nor Hernández’s legal team were able to get “any answers from the administration, which is why we’re continuing to advocate, which is why we’re continuing to reach out to Secretary Rubio.”
“A lot more Democrats are now engaged on this issue,” he said. U.S. Sens. Adam Schiff and Alex Padilla, both from California, joined Monday’s letter. “The more that we can get folks to understand how critical this is, the better. The momentum matters here. And I think Pride does provide an opportunity to share his story.”
Asked what the next steps might be, Garcia said “we’re letting his legal team really take the lead on strategy,” noting that Hernández’s attorneys have “already engaged with the ACLU” and adding, “It’s very possible that the Supreme Court could take this on.”
In the meantime, the congressman said “part of our job is to make sure that that people don’t forget Andry and that there is awareness about him, and I think there’s a responsibility, particularly during WorldPride, and during Pride, all throughout the month — like, this is a story that people should know. People should know his name and and people should be aware of what’s going on.”
Congress
Wasserman Schultz: Allies must do more to support LGBTQ Jews
A Wider Bridge honored Fla. congresswoman at Capital Jewish Museum on Thursday
Florida Congresswoman Debbie Wasserman Schultz on Thursday said allies need to do more to support LGBTQ Jewish people in the wake of Oct. 7.
“Since Oct. 7, what has been appalling to me is that LGBTQ+ Jewish organizations and efforts to march in parades, to be allies, to give voice to other causes have faced rejection,” said the Florida Democrat at the Capital Jewish Museum in D.C. after A Wider Bridge honored her at its Pride event.
Wasserman Schultz, a Jewish Democrat who represents Florida’s 25th Congressional District in the U.S. House of Representatives, added the “silence of our allies … has been disappointing.”
“It makes your heart feel hollow and it makes me feel alone and isolated, which is why making sure that we have spaces that we can organize in every possible way in every sector of our society as Jews is so incredibly important,” she said.
The Israeli government says Hamas militants on Oct. 7, 2023, killed roughly 1,200 people, including upwards of 360 partygoers at the Nova Music Festival, when it launched a surprise attack on the country. The militants also kidnapped more than 200 people on that day.
The Hamas-controlled Gaza Health Ministry says Israeli forces have killed nearly 55,000 people in the enclave since Oct. 7. Karim Khan, the International Criminal Court’s chief prosecutor, has said Israeli Prime Minister Benjamin Netanyahu and former Hamas leader Yahya Sinwar, who the Israel Defense Forces killed last October, are among those who have committed war crimes and crimes against humanity in Gaza and Israel.
A Wider Bridge is a group that “advocates for justice, counters LGBTQphobia, and fights antisemitism and other forms of hatred.”
Thursday’s event took place 15 days after a gunman killed two Israeli Embassy employees — Yaron Lischinsky and Sarah Milgrim — as they were leaving an event at the Capital Jewish Museum.
Police say a man who injured more than a dozen people on June 1 in Boulder, Colo., when he threw Molotov cocktails into a group of demonstrators who were calling for the release of the remaining Israeli hostages was yelling “Free Palestine.” The Associated Press notes that authorities said the man who has been charged in connection with the attack spent more than a year planning it.
Congress
Sen. Schiff proposes resolution urging DOD not to rename U.S. Naval Ship Harvey Milk
Pentagon reportedly plans to change the name of ship named for gay rights icon
U.S. Sen. Adam Schiff (D-Calif.) on Thursday introduced a resolution urging the U.S. Department of Defense not to rename ships that bear the names of civil rights leaders like gay rights pioneer Harvey Milk.
The move comes just after reports on Tuesday that U.S. Defense Secretary Pete Hegseth had ordered U.S. Navy Secretary John Phelan to rename the U.S. Naval Ship Harvey Milk, with an announcement deliberately planned for Pride month on June 14.
The vessel, a replenishment oiler, is part of the John Lewis class fleet. The Pentagon is also considering renaming other ships in the fleet including the USNS Thurgood Marshall, USNS Ruth Bader Ginsburg, and USNS Harriet Tubman, according to CBS News.
“By naming these ships,” Schiff wrote in his resolution, “the United States Navy has appropriately celebrated notable civil rights leaders and their legacy in promoting a more equal and just United States.”
Milk was assassinated in 1978 while serving on the San Francisco Board of Supervisors. Prior to his election to the Senate last year, Schiff represented California districts in the U.S. House since 2001.
Part one of his resolution “strongly supports the naming of John Lewis-class fleet replacement oilers after the aforementioned civil rights leaders as a fitting tribute to honor their contributions to the advancement of civil rights,” while part two “strongly encourages the Department of Defense not to take any action to change the names.”
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