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Legal experts disagree over Obama action on ‘Don’t Ask’

Does Oath of Office force presidents to defend all laws?

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Nan Hunter, a Georgetown University law professor and prominent gay rights attorney, says President Obama has done the right thing in appealing a decision by a federal judge that overturned the ‘Don’t Ask, Don’t Tell’ law.

Hunter’s view contradicts the position of nearly all national LGBT rights groups, which have urged Obama not to appeal the decision. But she is joined by a number of other legal and constitutional experts who oppose ‘Don’t Ask, Don’t Tell’ but believe U.S. presidents are obligated to defend laws passed by Congress under most circumstances.

“I think the president, through the Justice Department, should defend federal laws, including this one,” Hunter said. “Otherwise you just get way too much. You get the president being able to ignore laws that are passed by Congress, and that’s not a good situation.”

Hunter cautioned LGBT activists that dismantling the longstanding tradition that presidents should defend duly enacted laws — even unpopular ones — could result in the refusal by a different president to enforce laws beneficial to LGBT people.

Other legal experts, including constitutional specialists with the American Civil Liberties Union and the LGBT litigation group Lambda Legal, agree that presidents generally should defend federal laws. But they say the obligation to defend a law should not apply to cases where strong evidence exists that the law is unconstitutional and a court issues a ruling overturning the law on constitutional grounds.

“The ACLU recognizes the Executive’s duty to ‘take care that the laws be faithfully executed,’” said ACLU Executive Director Anthony Romero in an Oct. 14 open letter to Attorney General Eric Holder.

“This duty includes the responsibility to defend Acts of Congress in court, provided there is at least a reasonable argument in favor of the Act’s constitutionality,” Romero said. “At the same time, the Executive is duty bound to ‘preserve, protect and defend the Constitution of the United States,’ which guarantees that no person is ‘deprived of life, liberty or property without due process of law.’”

Romero noted that U.S. District Court Judge Virginia Phillips in California ruled in September that the ‘Don’t Ask, Don’t Tell’ law is unconstitutional on those same grounds.

“The question is no longer whether the Executive will defend an Act of Congress, but whether the Executive will appeal from a well-reasoned, obviously correct federal court ruling based on findings of fact that are exceedingly unlikely to be reversed,” he said in his letter.

“Given these findings and the proper legal standard of review to be applied, there is no reasonable argument for the constitutionality of the policy, and no reason for the government to appeal,” he said.

Hunter, who personally opposes ‘Don’t Ask, Don’t Tell,’ said following that course could become a “political disaster” that prompts a possible Republican Congress next year to take action to reinstate the law or attempt to force the president to continue to enforce it.

A far better course of action, according to Hunter, would be for the administration to appeal the decision and use a careful, strategic approach to presenting its arguments before the appeals court.

“There are many, many possibilities for how the administration could respond,” she said. “It could respond by filing the appeal so that the case goes to the appeals court and then making arguments that represent the president’s view that it’s a bad law…And then the court of appeals will decide, and that will have much more authority than one District Court judge.”

Susan Sommer, director of constitutional litigation for Lambda Legal, says Obama should not have appealed Judge Phillip’s decision to overturn ‘Don’t Ask, Don’t Tell.’

“It’s really a shame that the Obama administration is appealing this decision,” Sommer said. “The president is in no position to appeal a decision on a policy that the courts say is unconstitutional. He has an obligation to uphold the Constitution.”

Sommer said she agrees that Obama has an obligation to uphold laws as well as the Constitution.

“But he does not have an obligation to defend a statute whose constitutionality is being challenged in court,” she said. “There have been precedents of a president not defending a law under court challenge. The Justice Department exercises discretion all the time on whether to take cases or not, both civil and criminal.”

David Rittgers, legal policy analyst for the Cato Institute, a libertarian think tank, and an attorney with the Army Reserves, called the ‘Don’t Ask, Don’t Tell’ case a “unique situation” that involves all three branches of the federal government.

Saying he’s speaking for himself and not the Army, Rittgers said he sides with those who believe the president should defend laws, including this one.

“Congress ultimately has to answer this question,” he said. “This will not be a settled issue until Congress acts. This is constitutionally within the realm of Congress.”

Susan Low Bloch, a Georgetown University law professor who specializes in constitutional law, said presidents have refused to enforce laws or chosen not to appeal court decisions overturning them mostly in cases where the law interferes with the president’s or the executive branch’s ability to carry out its duties.

“That’s not the situation with ‘Don’t Ask, Don’t Tell,’” she said. “And that’s why it’s not at all surprising to me that the administration has chosen to defend the law, even though they don’t like it. The way to get rid of it is to undo it the proper way—to get Congress to undo it.”

“Now if the court strikes it down, I’m sure behind the scenes the president will be very happy. But he’s not supposed to go into court and undermine it,” she said.

Asked whether she believes a president should wait for the Supreme Court to strike down a law before he or she can stop enforcing it, Bloch said, “Yes, that’s right.”

“People really shouldn’t be surprised at this course because … clearly this is the way the system has worked and I think should work,” she said.

(Obama photo by Michael Key)

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Lesbian software developer seeks to preserve lost LGBTQ history

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‘There's so much history, and we have to transfer it to the digital,’ says Kristen Gwinn-Becker.

Up until the early 2010s, if you searched “Babe Ruth” in the Baseball Hall of Fame, nothing would pop up. To find information on the greatest baseball player of all time, you would have to search “Ruth, George Herman.” 

That is the way online archival systems were set up and there was a clear problem with it. Kristen Gwinn-Becker was uniquely able to solve it. “I’m a super tech geek, history geek,” she says, “I love any opportunity to create this aha moment with people through history.” 

Gwinn-Becker is the founder and CEO of HistoryIT, a company that helps organizations create digital archives that are genuinely accessible. “I believe history is incredibly important, but I also think it’s in danger,” she says. “Less than 2% of our historical materials are digital and even less of that is truly accessible.”

Gwinn-Becker’s love for history is personal. As a lesbian, growing up, she sought out evidence of herself across time. “I was interested in stories, interested in people whose lives mirrored mine to help me understand who I was.” 

“[My identity] influences my love of history and my strong belief in history is important,” she says.

Despite always loving history, Gwinn-Becker found herself living and working in San Francisco during the early dot com boom and bust in the ‘90s. “It was an exciting time,” she recounts, “if you were intellectually curious, you could just jump right in.”

Being there was almost happenstance, Gwinn-Becker explained: “I was 20 years old and wanted to live in San Francisco.” Quickly, she fell in love with “all of the incredible new tools.” She was working with non-profits that encouraged her to take classes and apply the new skills. “I was really into software, web, and database development.” 

But history eventually pulled her back. “Tech was fun, but I didn’t want to be a developer,” she says. Something was missing. When the opportunity to get a Ph.D. in history from George Washington University presented itself, “I got to work on the Eleanor Roosevelt papers, who I was and remain quite passionate about.” 

Gwinn-Becker’s research on Eleanor Roosevelt planted the seeds of digital preservation. “Eleanor Roosevelt doesn’t have a single archive. FDR has lots but the first ladies don’t,” she says. Gwinn-Becker wondered what else was missing from the archive — and what would be missing from the archive if we didn’t start preserving it now.

Those questions eventually led Gwinn-Becker to found HistoryIT in 2011. Since then, the company has created digital archives for organizations ranging from museums and universities to sororities, fraternities, and community organizations.

This process is not easy. “Digital preservation is more than scanning,” says Gwinn-Becker. “Most commercial scanners’ intent is to create a digital copy, not an exact replica.” 

To digitally preserve something, Gwinn-Becker’s team must take a photo with overhead cameras. “There is an international standard,” she says, “you create an archival TIFF.” 

“It’s the biggest possible file we can create now. That’s how you future-proof.”

Despite the common belief that the internet is forever, JPEGs saved to social media or websites are a poor archive. “It’s more expensive for us to do projects in the 2000 to 2016 period than to do 19th-century projects,” explains Gwinn-Becker, since finding adequate files for preservation can be tricky. “The images themselves are deteriorated because they’re compressed so much,” she says.

Her clients are finding that having a strong digital archive is useful outside of the noble goal of protecting history. “It’s a unique trove of content,” says Gwinn-Becker. One client saw a 790% increase in donations after incorporating the digital archive into fundraising efforts. “It’s important to have content quickly and easily,” says Gwinn-Becker, whose team also works with clients on digital strategy for their archive.

One of Gwinn-Becker’s favorite parts of her job is finding what she calls “hidden histories.”

“We [LGBTQ people] are represented everywhere. We’re represented in sports, in religious history, in every kind of movement, not only our movement. I’m passionate about bringing those stories out.” 

Sometimes queer stories are found in unexpected places, says Gwinn-Becker. “We work with sororities and fraternities. There are a hell of a lot of our stories there.”

Part of digital preservation is also making sure that history being created in the moment is not lost to future generations. HistoryIT works with NFL teams, for example. One of their clients is the Panthers, who hired Justine Lindsay, the first transgender cheerleader in the NFL. Gwinn-Becker was excited to be able to preserve information about Lindsay in the digital record. “It’s making history in the process of preserving it,” says Gwinn-Becker.

Preserving queer history, either through “hidden histories” or LGBTQ-specific archives, is vital says Gwinn-Becker. “Think about whose history gets marginalized, whose history gets moved to the sidelines, whose history gets just erased,” she prompts. “In a time of fake news, we need to point to evidence in the past. Queer people have existed since there were humans, but their stories are hidden,” Gwinn-Becker says.

Meanwhile, Gwinn-Becker accidentally finds herself as part of queer history too. Listed as one of Inc. Magazine’s Top 250 Female Founders of 2024, she is surrounded by names like Christina Aguilera, Selena Gomez, and Natalie Portman. 

One name stuck out. “Never in my life did I think I’d be on the same list – other than the obvious one – with Billie Jean King. That’s pretty exciting,” she said. 

But she can’t focus on the win for too long. “When I go to sleep at night, I think ‘there’s so much history, and we have to transfer it to the digital,’” she says, “We have a very small period in which to do that in a meaningful way.”

(This story is part of the Digital Equity Local Voices Fellowship lab through News is Out. The lab initiative is made possible with support from Comcast NBCUniversal.)

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Biden’s acknowledgment of LGBTQ History Month ‘consequential’

Equality Forum honors 31 new ‘icons’ as annual commemoration kicks off

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Rep. Mark Pocan was honored with Equality Forum’s International Role Model Award. (Washington Blade file photo by Michael Key)

President Joe Biden signed a letter acknowledging Equality Forum’s LGBTQ History Month launch event held on Sunday, writing that, “by celebrating stories of bravery, resilience and joy, your example inspires hope in all people seeking a life true to who they are.”

Malcolm Lazin, Equality Forum executive director, said Biden’s letter is “consequential.” He noted that one year before the White House delivered a proclamation for Black History Month, it issued a letter signed by the president.

“It’s our hope that next year, our nation’s 47th president will issue that proclamation for LGBT History Month,” Lazin said.

Equality Forum is an LGBTQ civil rights organization with an educational focus based in Philadelphia. The group’s work includes coordinating LGBTQ History Month, producing documentary films and overseeing the application for and installation of government-approved queer historic markers.

When spearheading LGBTQ History Month for the first time back in 2006, Lazin said many pushed back against the idea. Some media outlets claimed it was trying to turn straight people gay or promote pedophilia. 

But Lazin said the homophobic reactions died down when people were educated on topics that typically weren’t taught in a widespread way.

“We were demonized, marginalized, and vilified,” Lazin said. “One of the certain principal ways you’re going to make headway is if you humanize who we are, and also educate people about the important contributions we make to our common society.”

Education has always been Equality Forum’s solution to societal backlash or controversy since its inception, Lazin said.

The organization got its start in 1993 under the name PrideFest Philadelphia. Lazin, who was the founder, said it was created during a time when Pride parades were the main focus of the LGBTQ community. 

In an effort to shift focus onto civil rights issues, PrideFest hosted its first LGBTQ summit that eventually transformed into an event featuring national and international organizations. Lazin said it was an effort to educate people on LGBTQ history as well as inform the community on queer rights around the world.

Though that event was terminated in 2020, Lazin is still focused on educating both queer and straight people on LGBTQ civil rights. Equality Forum honors 31 “LGBTQ icons” each year for every day in October.

This initiative began when Equality Forum started coordinating LGBTQ History Month back in 2006, but Lazin didn’t notice their efforts taking off until about five years in.

“In year one, people thought, ‘Oh yeah, those are like all the important names of the gay community,’” he said. “People paid a little bit more attention the following years, and all of a sudden they’re recognizing, ‘Oh, in a certain sense I was clueless about the role models that the gay community has.’”

This year’s icons being recognized include names like singers George Michael, Luther Vandross, and Sam Smith; pioneering drag queen William Dorsey Swann; “The Bachelor” star Colton Underwood; Wisconsin Congressman Mark Pocan; and longtime Washington Blade Editor Kevin Naff.

Pocan received the International Role Model Award during Sunday’s LGBTQ History Month launch event. It’s the longest-standing LGBTQ award in the nation, and has been presented to prominent figures like former Speaker of the House Nancy Pelosi and U.S. Secretary of Transportation Pete Buttigieg.

He said accepting the award allowed him to reflect on the progress that’s been made in a relatively short time.

“I was preparing to make some remarks for the event, and I realized that I’ve been kind of in the front row of a lot of the history making in the country, because more of our history is in the last several decades,” Pocan told the Washington Blade. “There are significant moments in the past, but where the real improvements have happened have been more recent.”

In 1995, former President Bill Clinton invited Pocan, who is gay, and other LGBTQ elected officials to The White House for the first time. When they arrived and were going through security, Pocan said they noticed everyone was wearing blue gloves.

Initially assuming it was due to enhanced security following the aftermath of the Oklahoma City Bombing, Pocan said they later discovered the Secret Service agents thought they could contract AIDS from out elected officials.

He said the Secret Service issued an apology letter and the Clinton administration made it clear that wasn’t their policy. Even more memorable for Pocan was when then-Vice President Al Gore made it a point to shake everyone’s hands at the event.

Comparing that memory to Biden’s recent letter puts the advancements of LGBTQ rights into perspective for Pocan. He said that’s the reason recognizing and remembering queer history is vital.

“If you don’t know the history, it’s too easy to repeat it,” he said.

The fight to recognize the global work done toward advancing LGBTQ civil rights, however, isn’t over, Lazin said.

Many states are working to restrict LGBTQ topics from being taught in schools. Florida Gov. Ron DeSantis signed HB 1069 last year, dubbed “Don’t Say Gay” by critics, to prohibit lessons on sexual orientation and gender identity.

The New College of Florida faced backlash when photos of hundreds of library books, many containing LGBTQ topics, overflowing a dumpster were shared online. A New College spokesperson said the books were “taken after discovering that the library did not follow all of the state administrative requirements while conducting the routine disposition of materials.”

Despite what the future may hold for LGBTQ content in schools, Lazin said the resources Equality Forum promotes, including the website featuring 31 queer icons in October, are always available.

“At least on this site, students, teachers, and guidance counselors have resources,” he said. “So if you’re an English teacher and you want to be celebrating LGBT History Month, click on poets, or click on authors. You’ve got a whole rich range of people to be able to bring into your curriculum.”

The reality of what LGBTQ History Month has become today is more than the work of one organization; Lazin said it’s the combined effort of local communities that are curious about their own history.

“While we could not possibly take on doing the history of all the cities around the country or in North America or around the world, it really has helped to encourage people to appreciate that history and to make sure that it is well documented,” Lazin said.

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LGBTQ groups mark National Hispanic Heritage Month

GLAAD screened ‘Dímelo’ at Sept. 20 event in Los Angeles

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(GLAAD screenshot)

Advocacy groups across the country are marking National Hispanic Heritage Month.

The Creative Artists Agency in Los Angeles on Sept. 20 hosted a comedy night that featured Danielle Perez, Gabe González, Lorena Russ, and Roz Hernandez. The event, which GLAAD organized, also included a screening of “Dímelo,” a digital series the organization produced with LatiNation that features interviews with Latino comedians. 

A press release notes Damian Terriquez, Mimi Davila, Salina EsTitties, and Tony Rodriguez attended the event. GLAAD in a post on its website on Sept. 25 highlighted Essa Noche and other Latino drag queens.

“The art of drag has always been a vibrant expression of resistance, creativity, and identity, particularly within marginalized communities,” reads the post. “Latine drag artists not only embody the resilience and power of their heritage but also elevate queer voices in spaces where their visibility is often limited.”

EsTitties on Sept. 29 hosted Queerceañera, “an inclusive take on the coming-of-age quinceañera tradition throughout Latin America and the United States” the Los Angeles LGBT Center organized.

Celebrate Orgullo, which describes itself as the “first Hispanic and Indigenous LGBTQ+ festival in Greater Miami and Miami Beach,” will take place from Oct. 4-14. Unity Coalition|Coalición Unida, is organizing the events.

“The festival invites you to experience a warm and welcoming ‘wave’ of pride that celebrates what makes us unique while uniting us in a shared spirit of inclusion,” reads a press release.

GLSEN has posted to its website a list of resources for undocumented students.

“Especially in this political climate, it’s important not only to affirm LGBTQ Latinx identities with positive representation but also to ensure that students know how they’re protected, especially those who are among the most marginalized,” says GLSEN.

National Hispanic Heritage Month is from Sept. 15-Oct. 15.

Fenway Health in Boston on its website notes National Hispanic Heritage Month “honors and celebrates the vibrant histories, cultures, languages, traditions, values, and contributions of people whose ancestors came from Spain, Mexico, the Caribbean, and Central and South America.”

Hispanic Heritage Week began in 1968. It became National Hispanic Heritage Month in 1988.

Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua mark their respective Independence Days on Sept. 15. Mexico’s Independence Day is on Sept. 16, and Chile’s Independence Day is on Sept. 18. Día de la Raza is Oct. 12.

“Here at Fenway Health, we are grateful every day for the many Latino/a/é staff members, clients, patients, volunteers, and supporters that are part of our community,” said Fenway Health. Their contributions and perspectives help drive Fenway’s mission: To advocate for and deliver innovative, equitable, accessible health care, supportive services, and transformative research and education and to center LGBTQIA+ people, BIPOC (Black, Indigenous, and other people of color) individuals, and other underserved communities to enable our local, national, and global neighbors to flourish.”

President Joe Biden in his National Hispanic Heritage Month proclamation made a similar point.

“In our country, Latino leaders are striving for the American Dream and helping those around them reach it too,” he said. “From those who have been here for generations to those who have recently arrived, Latinos have pushed our great American experiment forward.”  

The proclamation also acknowledges Homeland Security Secretary Alejandro Mayorkas, Education Secretary Miguel Cardona, Health and Human Services Secretary Xavier Becerra, Small Business Administration Administrator Isabel Guzman, and other Latino members of his administration.

“I am proud to work with incredible Latino leaders, who are dedicated to bettering our nation every day,” said Biden.

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