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Obama administration seeks stay on ‘Don’t Ask’ case

Congressional votes are cause for pause, brief says



President Barack Obama’s administration is asking a federal court to halt proceedings on a legal challenge to ‘Don’t Ask, Don’t Tell.’ (Photo by Pete Souza, courtesy of White House)

The Obama administration is asking a federal court to hold off on advancing 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 June 9 in 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 the repeal of “Don’t Ask, Don’t Tell.”

The pending case, 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 last week 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 plaintiffs’ lack of standing.

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 says.

Late last month, the House and the Senate Armed Services Committee 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 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 he 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 tied 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 says.

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 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 says.

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.”

But NeJaime said he disagrees with the Justice Department’s determination that the Beller case applies to Log Cabin’s litigation and not Witt.

Although 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 said the Witt court drew on protections afforded to LGBT people in the 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.”



LGBTQ media ‘excited’ about Press Forward national media funds

Coalition of donors pledges $500 million for local news



Members of News Is Out, a collaborative of six leading LGBTQ media organizations across the country, have expressed support and excitement about the newly announced national Press Forward effort to support local media in the United States. News Is Out members represent more than 200 years of LGBTQ news and culture coverage, with two member papers starting more than 50 years ago.

“This new effort from foundations, including MacArthur Foundation and Knight Foundation, truly will be a game-changer in the local media space,” said Tracy Baim, co-founder of Windy City Times, which is part of a Chicago collaborative that is also advocating for local funding in that city. “Local media are critical to covering issues across the country, from LGBTQ+ and environmental issues to education and criminal justice reform. Philanthropy can provide an important complement to other needed revenues to help local media survive and thrive.”

In the U.S., 7.1 percent of adults, or 18 million people, identify as LGBTQ, according to Gallup. About 21 percent of Gen Z identifies as LGBTQ. The media serving this community has been life-saving, resource sharing and an integral part of the movement for LGBTQ equality, News Is Out members said, adding that this media continues to fill a vital information need.

According to the Press Forward announcement, “A coalition of 22 donors announced Press Forward, a national initiative to strengthen communities and democracy by supporting local news and information with an infusion of more than a half-billion dollars over the next five years.

“Press Forward will enhance local journalism at an unprecedented level to re-center local news as a force for community cohesion; support new models and solutions that are ready to scale; and close longstanding inequities in journalism coverage and practice.”

The Knight Foundation and the John D. and Catherine T. MacArthur Foundation have been leading the Press Forward effort.

News Is Out is supported in part by a technology grant from the Knight Foundation. The program is called the Queer Media Sustainability Lab

News Is Out is a nearly two-year-old alliance created launched by the Local Media Association, with initial funding from Google News Initiative. The members are Bay Area Reporter, Dallas Voice, Philadelphia Gay News, Washington Blade, Windy City Times and TAGG, a national queer women’s magazine.

News Is Out members have collaborated on editorial, business and fundraising opportunities.

“LGBTQ media have always played a critical role in covering and informing our communities,” said Lynne Brown, publisher of the Washington Blade. “While we have lost dozens of LGBTQ news media outlets in recent years, those of us who have survived are thriving in 2023. We have done so because we have innovated and sought new forms of revenue. The News Is Out Collaborative has assisted with support that propels us forward.”

“LGBTQ+ media is needed now more than ever, as our communities face a backlash across this country,” said Leo Cusimano, publisher of the Dallas Voice. “By working together in News Is Out, we have formed a strong alliance to help our members in technology training, editorial collaborations and much more. New funds into this ecosystem will be vital to strengthening the network of local LGBTQ+ media in this country.”

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Federal Government

Census Bureau asks White House to test questions on sexual orientation, gender identity

Data would be included in annual American Community Survey



U.S. Census Bureau (Photo credit: GSA)

The U.S. Census Bureau on Tuesday asked the Biden administration to sign off on plans to test questions on sexual orientation and gender identity for respondents aged 15 and older on the agency’s annual American Community Survey.

Data on these metrics will help inform civil rights and equal employment enforcement, the Census Bureau said in a notice published on the Federal Register.

Testing will help the agency determine wording, response categories and placement of the questions on the survey — its most comprehensive, covering 3.5 million households each year.

A key unknown will be how answers will be provided by proxies such as parents, spouses or others in a household who isn’t the person about whom the question is asked.

“Younger LGBT people might not yet be out to their parents or others who are answering these questions as a proxy reporter, so the quality of the data might not be as good for younger people,” M. V. Lee Badgett, an economics professor at the University of Massachusetts Amherst, told PBS News.

Currently, the Census Bureau and its annual American Community Survey only ask questions about same-sex couples who are married or cohabitating.

“We anticipate having much more info about the LGBT people than is currently available — including about the demographic and socioeconomic status of LGBT people who aren’t in same-sex couple households, including occupational status, industry and wages, and about LGBT people who were born outside the U.S. and LGBT people with disabilities, and their families,” Kerith Conron, research director of the Williams Institute at UCLA School of Law, told the Associated Press.

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Federal Government

Pentagon to restore honor to veterans kicked out over their sexual orientation

Legislation seeks accountability for DoD



U.S. Secretary of Defense Lloyd Austin (screen capture/YouTube/CNN)

The U.S. Department of Defense announced plans to restore honor to service members who were kicked out of the military over their sexual orientation, the agency announced on Wednesday, the 12th anniversary of the repeal of “Don’t Ask, Don’t Tell.”

“Over the past decade, we’ve tried to make it easier for service members discharged based on their sexual orientation to obtain corrective relief,” U.S. Secretary of Defense Lloyd Austin said in a statement.

“While this process can be difficult to navigate, we are working to make it more accessible and efficient,” he said, adding, “in the coming weeks, we will be initiating new outreach campaigns to encourage all service members and veterans who believe they have suffered an error or injustice to seek correction to their military records.”

The move follows a class action lawsuit filed last month by LGBTQ veterans against the Pentagon for allegedly failing to remedy “ongoing discrimination,” including biased language in the discharge papers of LGBTQ veterans.

CBS News has investigated the Pentagon’s handling of service records of veterans who were kicked out of the military because of their sexual orientation, revealing the broad scope of discrimination experienced by these LGBTQ veterans — finding, for instance, that more than 29,000 were denied honorable discharges.

Also on Wednesday, U.S. Reps. Mark Takano (D-Calif.) and Sara Jacobs (D-Calif.), along with U.S. Sen. Richard Blumenthal (D-Conn.) re-introduced a bill that would establish “a commission to investigate the historic and ongoing impacts of discriminatory military policies on LGBTQ service members and veterans.”

“This commission would study the impact of these bigoted rules” barring LGBTQ troops from serving “and forge a more welcoming future in the military and at the VA,” said Takano, who serves as ranking member of the House Committee on Veterans’ Affairs and co-chair of the Congressional Equality Caucus.

“Our country has never made amends for official discriminatory policies like ‘Don’t Ask, Don’t Tell’ and the transgender military ban – and that failure still haunts today’s service members and veterans,” said Jacobs.

“That’s why I’m so proud to co-lead this bicameral legislation that will right these historic wrongs, investigate the past and present impact of anti-LGBTQ+ policies, and help us move forward to build and sustain a diverse, inclusive, strong, and welcoming military.”  

“This commission would be an important step to understand the full scope of the harms caused by policies like Don’t Ask, Don’t Tell, and to ensure a more equitable future for all who serve our country in uniform,” Blumenthal said.

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