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preparation, trial, and any potential post-trial briefing concerning the constitutionality of a statute that may be repealed.”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.”
Republican Pa. governor nominee opposes LGBTQ rights
Former President Trump backed state Sen. Doug Mastriano
Republican leadership in the Keystone State are expressing quiet alarm over the emergence of radical-right state senator who secured his place as the party’s nominee in the race against Democratic nominee for governor, Josh Shapiro, who is himself currently serving as the commonwealth’s attorney general.
State Sen. Doug Mastriano, who represents Cumberland, Adams, Franklin and York Counties in the South Central Pennsylvania area bordering Maryland, was not seen as a truly viable candidate in the primary race to be the party standard-bearer until he was endorsed by former President Trump.
Pennsylvania’s gubernatorial race has serious implications for the outcome of the 2024 presidential election cycle as well. The commonwealth is a strategic swing state and the occupant of the governor’s chair in Harrisburg will lend considerable influence to a final vote count.
Mastriano is a polarizing figure within the state’s Republican Party.
The retired U.S. Army colonel has campaigned at political events that included QAnon adherents, he espoused a political agenda that embraced Trump’s Big Lie about the 2020 election, rejected measures taken to protect Pennsylvanians including masks in the coronavirus pandemic, holding an anti-vaccine “Medical Freedom Rally” rally on the state Capitol steps days after declaring his candidacy for the GOP governor’s primary race, and also mixing in messaging of Christian nationalism.
He also supports expanding gun rights in Pennsylvania and in the state Senate sponsored a bill to ban abortion once a heartbeat is detected.
NBC News noted that Mastriano pledged in his election night address that on the first day of his administration he would crack down on “critical race theory,” a catchall term Republicans have used to target school equity programs and new ways of teaching about race, transgender rights and any remaining COVID-19 vaccine requirements.
“CRT is over,” Mastriano declared. “Only biological females can play on biological females’ teams,” he added, and “you can only use the bathroom that your biology and anatomy says.”
His anti-LGBTQ views have long been part of his personal portfolio. The Washington Post reported that 21 years ago while attending the Air Force’s Air Command and Staff College in 2001, then-Maj. Mastriano wrote his master’s thesis on a hypothetical “left-wing ‘Hitlerian putsch'” that was caused by “the depredations of the country’s morally debauched civilian leaders.” Among those “depredations,” in his words, was the “insertion of homosexuality into the military.”
As the Post reported, his paper shows “disgust for anyone who doesn’t hold his view that homosexuality is a form of ‘aberrant sexual conduct.'”
The paper is posted on an official Defense Department website and lists Mastriano as the author at a time when he said he received a master’s degree from the school.
Two decades before he was Republican nominee for Pennsylvania governor, Doug Mastriano warned in a master’s thesis that morally debauched political leaders weren’t fit to oversee the U.S. military. https://t.co/NHOnijBng7— The Washington Post (@washingtonpost) May 20, 2022
This is not the only instance of Mastriano professing anti-LGBTQ beliefs.
In 2018, he stated his belief that LGBTQ couples should not be allowed to adopt a child. During an interview with 103.7 FM, when asked “should LGBTQ couples, i.e. two moms or two dads, be allowed to adopt?” Mastriano answered, “No.” [This takes place at the 16:00 mark.]
NBC News interviewed David La Torre, a Republican and former adviser to fellow gubernatorial candidate Jake Corman.
“As far as what a Pennsylvania government would look like with Mastriano in charge, quite frankly, it’s just not something I’m ready to think about at this point,” La Torre said, adding that while there are many unknowns, the dynamic between Mastriano and the state General Assembly, currently controlled by Republicans, would be one to watch.
“All I know is this — he will govern as governor like he campaigned,” he said. “He would govern with a sledgehammer and expect Republicans to fall in line. And it would be one of the more fascinating tugs of war we’ve seen in Harrisburg.”
Dave Ball, chairman of the Washington County GOP, told NBC News that Mastriano’s victory was “a shame” for the party, the product of “a phenomenon that I truly don’t understand.” But any misgivings won’t stop Ball from working toward the ultimate goal: taking back the governor’s mansion, saying it’s a must-win race. (The two-term incumbent, Tom Wolf, a Democrat, is term-limited.)
As if telegraphing the battles to come should he take the governor’s chair, Politico reported: “Our biggest problem,” said Mastriano on Steve Bannon’s “War Room: Pandemic” podcast on Tuesday, “is going to be these feckless RINO-type Republicans here that will not allow us to have a fighter as governor. But we’re going to beat them and they’re going to lose power, and they’re going to be put to shame.”
Mastriano lists agenda as governor during Pa. GOP nominee victory speech:
History making win- Out Lesbian could be Oregon’s next governor
“This will be a three-way race for the highest office in our state, and this will be an election unlike anything any of us have ever seen”
The Democratic gubernatorial primary Tuesday win by Oregon Speaker of the House Tina Kotek, who had announced her run for the governor’s seat to replace incumbent Democratic Governor Kate Brown, who is term limited last September 1st, 2021, positions her to become the first Out Lesbian governor in the nation should she win the general election in November.
Kotek’s win comes during an uptick in the elections nationwide as more candidates running for office identify as LGBTQ”. More than 600 LGBTQ candidates are on ballots this year, according to the LGBTQ Victory Fund.
According to the Victory Fund, at least 101 people ran or are running for the U.S. Senate or U.S. House – with 96 still actively running as of February 21, 2022. That marks a 16.1 percent increase in LGBTQ Congressional candidates compared to the 2020 election cycle, when 87 people ran.
Speaking to her supporters after it became clear she had won over Oregon Treasurer Tobias Read, who was polling second among Oregonian progressives, “This will be a three-way race for the highest office in our state, and this will be an election unlike anything any of us have ever seen,” Kotek said.
Republican state legislator Christine Drazan along with an independent candidate, Betsy Johnson are slated to be on the November ballot.
Last Fall when she announced her candidacy, she said, “I am running for Governor because I know that, together, we can reckon with the legacies of injustice and inequality to build a great future for Oregon.” She also noted, “Oregonians are living through a devastating pandemic, the intensifying impacts of climate change, and the economic disruptions that leave too many behind. We must get past the politics of division and focus on making real, meaningful progress for families across our state.”
“A victory for Tina would shatter a lavender ceiling and be a milestone moment in LGBTQ political history, yet she is running not to make history, but because there are few people as prepared and qualified to serve as Oregon’s governor,” said Mayor Annise Parker, President & CEO of LGBTQ Victory Fund. “Under Tina’s leadership, Oregon has led in passing legislation to improve roads and education, raise the minimum wage and ensure all residents are treated fairly and equally. As governor, Tina will make Oregon a role model for the nation.”
Karine Jean-Pierre on her firsts: ‘I am a Black, gay, immigrant woman’
High praise for first out WH press secretary
Karine Jean-Pierre is no stranger to progressive politics.
She takes on the role of White House press secretary as part of a long career working on building political coalitions and as a spokesperson for advocates before coming to the Biden administration, which has won her close allies and admirers who continue to cheer her on. Jean-Pierre’s new position as top spokesperson for President Biden — and the first Black, first openly gay person to become White House press secretary — is the latest endeavor she pursues in that broader mission.
Rahna Epting, executive director of MoveOn.org, knew Jean-Pierre from when she worked at the progressive organization and she quickly became a rising star “because she’s so incredibly skilled at communicating in a way that real people understand.”
“She was incredibly relatable to people that were watching her at home on TV,” Epting said. “And she could speak to you know, she she did that role during the Trump era for MoveOn and she really spoke to the hearts and minds of what people were feeling and thinking during that time.”
It was during Jean-Pierre’s time with MoveOn when she was serving as a moderator for a panel with Kamala Harris and famously rose to block an animal-rights activist who was physically threatening the candidate.
When protests emerged during the Trump era over policies such as his travel ban on Muslim countries, efforts to repeal the Affordable Care Act, and the two impeachment votes seeking to remove Trump from office, Epting said Jean-Pierre was key in MoveOn.org being at the front lines of those efforts.
“Karine was on TV and she was representing the movement in ways that sparked or electrified the energy that was actually being felt out there,” Epting said.
Jean-Pierre, 45, has a distinctive story of rising to become White House press secretary as an immigrant from a Haitian family whose parents brought her to the United States, where she was raised in Queens, N.Y., from the age of five. Jean-Pierre cared for her younger siblings growing up as her mother worked as a home health aide and her father worked as a taxi driver.
Despite these humble beginnings, Jean-Pierre nonetheless reached astonishing heights. After receiving her master’s degree from the School of International & Public Affairs at Columbia University, Jean-Pierre went on to work for President Obama, serving as regional political director for the White House Office of Political Affairs during the Obama administration’s first term, before returning to the White House after Biden was elected president.
Michael Strautmanis, now executive vice president for public engagement at the Obama Foundation, worked with Jean-Pierre in the 2008 presidential campaign and at the White House under Obama and said the first thing that came across to him was how she “always had it covered.”
“She never came and asked me for advice on something where she didn’t already have one or two or three possible solutions to the challenge that she always had,” Strautmanis said. “She was always very, very well prepared, so she just sort of stood out to me.”
Jean-PIerre brings all this background to the role of White House press secretary in addition to achieving many firsts in the appointment as a Black woman, an LGBTQ person and an immigrant. Her partner is Suzanne Malveaux, a CNN reporter and former White House correspondent.
In her maiden briefing on Monday as White House press secretary, Jean-Pierre said the opportunity granted to her in her new role was not just an achievement, but the culmination of work from many who came before her.
“I am obviously acutely aware that my presence at this podium represents a few firsts,” Jean-Pierre said,. “I am a Black, gay, immigrant woman, the first of all three of those to hold this position. I would not be here today if it were not for generations of barriers — barrier-breaking people before me. I stand on their shoulders. If it were not for generations of barrier-breaking people before me, I would not be here.”
Asked by April Ryan of The Grio, a Black news outlet, about the many firsts she achieved by taking on the role as White House press secretary, Jean-Pierre recognized the signal that sends and brought up an article from a newspaper that went to her elementary school in Hampstead, N.Y.
“And these kids wrote me a letter,” Jean-Pierre said. “And in the letter, they talked about how they can dream bigger because of me standing behind this podium. And that matters. You know, as I started out at the beginning: Representation matters. And not just for girls, but also for boys.”
A White House spokesperson said Jean-Pierre was unable to make the Washington Blade’s deadline in response to an interview request for this article. Among the questions the Blade planned to ask was whether or not she feels a special obligation to represent and speak for the communities in her role as White House press secretary.
It wasn’t a straight line for Jean-Pierre to get to the position as White House press secretary. Although she worked for Harris in the Biden campaign, she came to the White House as deputy White House press secretary under Jen Psakl, who was responsible for Biden. (At the start of the Biden administration, Politico reported that Jean-Pierre’s relationship with the vice president became strained and Jean-Pierre was effectively estranged in the final five months of the campaign.)
But Jean-Pierre quickly won high praise in her role as a Biden spokesperson. In May 2021, when she gave her first on-camera briefing as a substitute for Psaki, Jean-Pierre was considered effectively to have knocked the ball out of the park and reportedly won a round of applause from her colleagues upon retuning to the press office.
Ester Fuchs, who was an instructor for Jean-Pierre when she was at Columbia University’s School of International & Public Affairs and later her colleague when she returned as a lecturer, said key to understanding Jean-Pierre’s success in communications is her balance of optimism and realism.
“She showed really a deep understanding of American politics, and particularly divisions in American politics,” Fuchs said. “But she was very much committed to the idea that the American Dream was still real for people like her, but with a kind of realpolitik understanding of what were the roadblocks, and always very committed to equity and fairness and making sure that people who were new immigrants or from high -needs population had a chance to be heard.”
The high praise Jean-Pierre receives from her former colleagues and friends undermines the argument in conservative media she was selected for the role of White House press secretary only because she checks off numerous boxes in the base of the Democratic Party’s coalition. Tucker Carlson of Fox News, for example, aired a segment last week deriding the appointment as the latest example of identity politics. Carlson mocked supporters for saying being LGBTQ is “the only thing you need to know” about Jean-Pierre, essentially ignoring the commitment and achievement she has made in getting there.
But there’s also a boon of having a good personality. Jean-Pierre’s smile as a means of being effective in disarming and comforting people was one of her features that came up two times independently among the people close to her the Blade consulted for this article.
Strautmanis said he’ll be watching to see whether or not Jean-Pierre’s humor comes out in her new role in White House press secretary as well as her capability to make people around her implicitly trust her, but ultimately predicted she would “kick ass.”
“She just engenders a tremendous confidence,” Strautmanis said. “And so, I think that’s the other thing that people are going to see, which is that as she speaks, you’re just gonna have a sense that, ‘You know, I trust what this person is saying,’ and I think that’s a really hard thing to do in that in the work that she’s done before in that job. But I think that’s why she transitioned from being a political staffer into communications, because she has that ability in communications to be up front, be direct, be honest, and yet still kind of push forward a particular agenda. I think that’s a rare combination.”
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