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‘Don’t Ask, Don’t Tell’ is dead

Calif. court ruling means gays can serve openly

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DADT training

DADT training at Quantico, VA. (Blade photo by Michael Key)

A federal appellate court in California on Wednesday overturned a stay on an injunction that had barred the U.S. government from enforcing “Don’t Ask, Don’t Tell,” allowing gay service members to start serving openly in the armed forces.

In the case of Log Cabin Republicans v. United States, a three-judge panel of the U.S. Ninth Circuit Court of Appeals granted the plaintiffs’ request to lift the stay of the injunction that was put in place last year by a U.S. district judge.

“Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted,” the decision states.

The decision to lift the stay on the “Don’t Ask, Don’t Tell” injunction comes from a three-judge panel within the Ninth Circuit made up of Chief Judge Alex Kozinski and Circuit Judges Kim Wardlow and Richard Paez.

After ruling in September that “Don’t Ask, Don’t Tell” was unconstitutional, U.S. District Judge Virginia Phillips put an injunction in place to halt the enforcement of the military’s gay ban. The injunction lasted for eight days until the Ninth Circuit placed a stay on the order upon request from the Justice Department, making gays once again unable to serve openly in the military.

The ruling on Wednesday reverses this decision and once again allows for open service. The Ninth Circuit must still decide on the constitutionality of “Don’t Ask, Don’t Tell,” but until it does, the anti-gay law will no longer be enforced.

Cynthia Smith, a Defense Department spokesperson, said the Pentagon is studying the decision with the Justice Department, but will comply with the court order and take “immediate steps to inform the field of this order.”

“In the meantime, implementation of the [‘Don’t Ask, Don’t Tell’] repeal voted by the Congress and signed into law by the president last December is proceeding smoothly, is well underway, and certification is just weeks away,” Smith added.

The panel’s decision, dated July 6, notes that the U.S. government never asserted “Don’t Ask, Don’t Tell” was constitutional in briefs seeking to uphold the statute. Further, the appellate court notes U.S. Attorney General Eric Holder’s announcement in February that the Obama administration determined that the Defense of Marriage Act — and laws related to sexual orientation — are unconstitutional.

“Appellants/cross-appellees state that the process of repealing [‘Don’t Ask, Don’t Tell’] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer,” the decision states. “The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay.”

R. Clarke Cooper, executive director of the Log Cabin Republicans (Washington Blade photo by Michael Key)

R. Clarke Cooper, executive director of Log Cabin Republicans, which brought the case to court, said the Ninth Circuit’s decision to lift the stay “removes all uncertainty” for gay service members who are “no longer under threat of discharge as the repeal implementation process goes forward.”

“As a captain in the United States Army Reserve, I have observed the reactions of my colleagues to the Department of Defense’s move toward open service, and can say with complete confidence that our military is ready, willing and able to take this step,” Cooper said. “Log Cabin Republicans are proud of our role in ending this unconstitutional and un-American policy once and for all.”

Alex Nicholson, executive director of Servicemembers United and the sole military veteran plaintiff in the lawsuit, praised the decision for bringing about an end to “Don’t Ask, Don’t Tell” at a time when certification is still outstanding to end the military’s gay ban legislatively.

“With the wait for certification dragging out beyond a reasonable time frame, the court has once again stepped in to require the Pentagon to stop enforcing ‘Don’t Ask, Don’t Tell,’ and this time it very well may be for good,” Nicholson said. “I am proud to have worked personally worked with Log Cabin on this case for more than five years now and to have represented the gay military community as the sole named veteran on this lawsuit. Despite the criticisms and years of waiting, this case has yet again successfully eviscerated this outdated, harmful, and discriminatory law.”

Under the repeal law signed in December, “Don’t Ask, Don’t Tell” won’t be off the books until 60 days pass after the president, the defense secretary and the chair of the Joint Chiefs of Staff certify the military for open service. Although training throughout the military has been underway since February, certification has yet to take place.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said the lifting of the stay is “most welcomed” and could have been avoided if the president and defense leaders had certified repeal at an earlier time.

Aubrey Sarvis, executive director of SLDN (Washington Blade file photo by Michael Key)

“It’s the hope of Servicemembers Legal Defense Network that this favorable ruling will not be challenged by the Defense Department,” Sarvis said. “In fact, this whole matter could have been avoided had we had certification back in the spring. It’s time to get on with that important certification, end the confusion for all service members, and put a final end to this misguided policy.”

Dan Woods, an attorney with White & Case LLC who’s handling the case for Log Cabin, said the Justice Department can appeal the lifting of the stay to either the full Ninth Circuit or the Supreme Court.

“I have no idea what the government’s going to do,” Woods said. “And really they shouldn’t have appealed in the first place and they shouldn’t take this any further. They just should acknowledge, once and for all, that ‘Don’t Ask, Don’t Tell’ is dead.”

A White House spokesperson deferred comment on the Ninth Circuit decision to the Justice Department and the Pentagon.

Woods warned gay service members not to come out until the government makes an announcement and whether or not it plans to appeal the decision to lift the stay on the injunction.

“I’m urging people to sort of wait and see what the government does before people come out, but people should stayed tuned and see what the government’s next move is and maybe people will be free to serve openly in the armed forces very soon,” Woods said.

In addition to lifting the stay, the appellate court also grants the plaintiff’s request to expedite oral arguments in the case and states the case should be calendared for the week of Aug. 29.

Woods said the continued oral arguments — even with the injunction in place — are necessary because the litigation in the Log Cabin lawsuit is still ongoing.

“The only thing that’s really been decided is that the stay of the injunction,” Woods said. “The government is still arguing in its appeal that the injunction. It’s arguing that Log Cabin doesn’t have standing to bring the case and things like that, and we wanted to put these issues to bed once and for all and so we asked the court for an expedited hearing on all these other issues.”

NOTE: This post has been updated.

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U.S. Supreme Court

Supreme Court rules White House can implement anti-trans passport policy

ACLU, Lambda Legal filed lawsuits against directive.

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(Bigstock photo)

The U.S. Supreme Court on Thursday said the Trump-Vance administration can implement a policy that bans the State Department from issuing passports with “X” gender markers.

President Donald Trump once he took office signed an executive order that outlined the policy. A memo the Washington Blade obtained directed State Department personnel to “suspend any application where the applicant is seeking to change their sex marker from that defined in the executive order pending further guidance.”

The White House only recognizes two genders: male and female.

The American Civil Liberties Union in February filed a lawsuit against the passport directive on behalf of seven trans and nonbinary people.

A federal judge in Boston in April issued a preliminary junction against it. A three-judge panel on the 1st U.S. Circuit Court of Appeals in September ruled against the Trump-Vance administration’s motion to delay the move.

A federal judge in Maryland also ruled against the passport policy. (Lambda Legal filed the lawsuit on behalf of seven trans people.)

 “This is a heartbreaking setback for the freedom of all people to be themselves, and fuel on the fire the Trump administration is stoking against transgender people and their constitutional rights,” said Jon Davidson, senior counsel for the ACLU’s LGBTQ and HIV Project, in a statement. “Forcing transgender people to carry passports that out them against their will increases the risk that they will face harassment and violence and adds to the considerable barriers they already face in securing freedom, safety, and acceptance. We will continue to fight this policy and work for a future where no one is denied self-determination over their identity.”

Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor dissented.

The Supreme Court ruling is here.

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Political leaders, activists reflect on Dick Cheney’s passing

Former VP died on Monday at 84

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Former Vice President Dick Cheney (Bigstock photo)

Dick Cheney, the 46th vice president of the United States who served under President George W. Bush, passed away on Monday at the age of 84. His family announced Tuesday morning that the cause was complications from pneumonia and cardiac and vascular disease.

Cheney, one of the most powerful and influential figures in American politics over the past century, held a long and consequential career in public service. He previously served as White House chief of staff for President Gerald Ford, as the U.S. representative for Wyoming’s at-large congressional district from 1979-1989, and briefly as House minority whip in 1989.

He later served as secretary of defense under President George H.W. Bush before becoming vice president during the George W. Bush administration, where he played a leading behind-the-scenes role in the response to the Sept. 11 attacks and in coordinating the Global War on Terrorism. Cheney was also an early proponent of the U.S. invasion of Iraq, falsely alleging that Saddam Hussein’s regime possessed weapons of mass destruction and had ties to al-Qaeda.

Cheney’s personal life was not without controversy.

In 2006, he accidentally shot Harry Whittington, a then-78-year-old Texas attorney, during a quail hunt at Armstrong Ranch in Kenedy County, Texas — an incident that became the subject of national attention.

Following his death, tributes and reflections poured in from across the political spectrum.

“I am saddened to learn of the passing of former Vice President Dick Cheney,” former Vice President Kamala Harris posted on X. “Vice President Cheney was a devoted public servant, from the halls of Congress to many positions of leadership in multiple presidential administrations,” she added. “His passing marks the loss of a figure who, with a strong sense of dedication, gave so much of his life to the country he loved.”

Harris was one of the Democrats that the Republican had supported in recent years following Trump’s ascent to the White House.

Former President Joe Biden, who served as former President Obama’s vice president, said on X that “Dick Cheney devoted his life to public service — from representing Wyoming in Congress, to serving as Secretary of Defense, and later as vice president of the United States.”

“While we didn’t agree on much, he believed, as I do, that family is the beginning, middle, and end. Jill and I send our love to his wife Lynne, their daughters Liz and Mary, and all of their grandchildren,” he added.

Human Rights Campaign Senior Vice President of Federal and State Affairs JoDee Winterhof reflected on Cheney’s complicated legacy within the LGBTQ community.

“That someone like Dick Cheney, whose career was rife with anti-LGBTQ+ animus and stained by cruelty, could have publicly changed his mind on marriage equality because of his love for his daughter is a testament to the power and necessity of our stories.”

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Pelosi won’t seek re-election next year

Longtime LGBTQ ally played key role in early AIDS fight

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Nancy Pelosi is retiring after nearly 40 years in Congress. (Photo courtesy of the Office of Nancy Pelosi)

Rep. Nancy Pelosi, the nation’s first and only female speaker of the U.S. House of Representatives and a lifelong LGBTQ ally, announced Thursday that she will not seek re-election next year, after 38 years in Congress, many of them as House party leader.

“I have truly loved serving as your voice in Congress, and I have always honored the song of St. Francis, ‘Lord make an instrument of thy peace,’ the anthem of our city. That is why I want you, my fellow San Franciscans, to be the first to know. I will not be seeking reelection to Congress,” Pelosi, 85, announced in a video.

Pelosi has represented San Francisco in the U.S. House of Representatives since 1987.

Her time in Congress began with the AIDS crisis, and she has kept up the fight ever since, as the Washington Blade reported in an exclusive and wide-ranging 2023 interview conducted just after she left House leadership. 

Some excerpts from that interview:

“After committing herself and Congress to the fight against HIV/AIDS during her first speech from the floor of the House in 1987, Pelosi said some of her colleagues asked whether she thought it wise for her feelings on the subject to be “the first thing that people know about you” as a newly elected member.

“They questioned her decision not because they harbored any stigma, but rather for concern over how “others might view my service here,” Pelosi said. The battle against HIV/AIDS, she told them, “is why I came here.”

“It was every single day,” she said. 

“Alongside the “big money for research, treatment, and prevention” were other significant legislative accomplishments, such as “when we] were able to get Medicaid to treat HIV [patients] as Medicaid-eligible” rather than requiring them to wait until their disease had progressed to full-blown AIDS to qualify for coverage, said Pelosi, who authored the legislation.

“That was a very big deal for two reasons,” she said. First, because it saved lives by allowing low-income Americans living with HIV to begin treatment before the condition becomes life-threatening, and second, because “it was the recognition that we had this responsibility to intervene early.”

“Other milestones in which Pelosi had a hand include the Housing Opportunities for People with AIDS program, President Bush’s PEPFAR (President’s Emergency Plan For AIDS Relief) initiative, the Affordable Care Act (which contains significant benefits for Americans living with HIV/AIDS), and funding for the Ending the Epidemic initiative. 

“Outside the U.S. Capitol building, Pelosi has also been celebrated by the LGBTQ community for signaling her support through, for example, her participation in some of the earliest meetings of the NAMES Project AIDS Memorial Quilt, her meeting with the survivors of the 2016 Pulse nightclub massacre, and her appearance at a host of LGBTQ events over the years.  

“Of course, at the same time, Pelosi has been a constant target of attacks from the right, which in the past few years have become increasingly violent. During the siege of the Capitol on Jan. 6, 2021, her office was ransacked by insurrectionists who shouted violent threats against her. A couple of weeks later, unearthed social media posts by far-right Rep. Marjorie Taylor Greene (Ga.) revealed she had signaled support for executing Pelosi along with other prominent House Democrats. And last October, the speaker’s husband Paul Pelosi suffered critical injuries after he was attacked by a man wielding a hammer who had broken into the couple’s San Francisco home. 

“Pelosi told CNN last week that her husband is “doing OK,” but expects it will “take a little while for him to be back to normal.”

“Among her fans in progressive circles, Pelosi – who has been a towering figure in American politics since the Bush administration – has become something of a cultural icon, as well. For instance, the image of her clapping after Trump’s State of the Union speech in 2019 has been emblazoned on coffee mugs.

“What is so funny about it,” Pelosi said, is rather than “that work [over] all these years as a legislator,” on matters including the “Affordable Care Act, millions of people getting health care, what we did over the years with HIV/AIDS in terms of legislation, this or that,” people instead have made much ado over her manner of clapping after Trump’s speech. And while the move was widely seen as antagonistic, Pelosi insisted, “it was not intended to be a negative thing.” 

“Regardless, she said, “it’s nice to have some fun about it, because you’re putting up with the criticism all the time – on issues, whether it’s about LGBTQ, or being a woman, or being from San Francisco, or whatever it is.” 

Human Rights Campaign President Kelley Robinson in a statement said there “will never be another Nancy Pelosi.”

“Throughout her career, Speaker Emerita Pelosi has remained a tireless champion for LGBTQ+ equality and worked alongside LGBTQ+ advocates to pass historic legislation that expanded access to health care, protected marriage equality, honored Matthew Shepard with federal hate crimes protections and ended ‘Don’t Ask, Don’t Tell,’” said Robinson. “Her steel spine, allyship and keen insight have served as powerful tools in our shared fight for progress and we are grateful for her unwavering commitment to our community.”

House Minority Leader Hakeem Jeffries (D-N.Y.) described Pelosi as an “iconic, heroic, trailblazing, legendary, and transformational leader” who is “the greatest speaker of all time.” President Donald Trump, for his part, told Peter Doocy that Pelosi’s retirement “is a great thing for America.”

“She was evil, corrupt, and only focused on bad things for our country. She was rapidly losing control of her party, and it was never coming back,” said Trump. “I’m very honored that she impeached me twice and failed miserably twice. Nancy Pelosi is a highly overrated politician.”

Gay California Congressman Mark Takano in a statement said he will “miss” Pelosi “immensely.”

“At a time of extraordinary challenge and change, her leadership has been a constant,” said Takano. “She has guided our caucus and our country through some of our hardest moments. But her legacy reaches far beyond the landmark legislation she passed. It lives in the people she mentored, the values she imparted, and the example she set for every person who believes that politics can still be a force for good.”

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