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Will Obama drop gov’t defense of ‘Don’t Ask?’

Court orders administration to announce its intent within 10 days

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A federal appellate court on Monday directed the Obama administration to announce within 10 days whether or not it will continue to defend “Don’t Ask, Don’t Tell” in court in the wake of its decision to no longer litigate on behalf of the Defense of Marriage Act.

In an order dated July 11, the U.S. Ninth Circuit Court of Appeals states that the Justice Department must announce if it will continue to defend “Don’t Ask, Don’t Tell,” or, as was the case with DOMA, allow Congress to intervene to take up defense of the military’s gay ban.

“The Government is hereby ordered to advise the court whether it intends to submit a report to Congress … outlining its decision to refrain from defending [‘Don’t Ask, Don’t Tell’],” the order states. “The Government is further ordered, if such a report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding.”

The order states that this notification must be submitted within 10 days and take the form of letters to the court no longer than 10 pages or 2,800 words in length. A Justice Department spokesperson didn’t immediately respond to the Washington Blade’s request for comment on the issue.

The executive branch of the U.S. government has the authority to refrain from defending laws in court it believes are unconstitutional, but must notify Congress to provide that body the opportunity to take up defense of such laws.

That’s the situation that played out with DOMA. On Feb. 23, U.S. Attorney General Eric Holder notified Congress the Justice Department would no longer defend DOMA because the Obama administration determined the anti-gay law was unconstitutional. Following a party-line vote from the Bipartisan Legal Advisory Group, U.S. House Speaker John Boehner (R-Ohio) directed House general counsel to defend the anti-gay law and hired private attorney and former U.S. solicitor general Paul Clement to assist in the defense.

Holder says in the letter the administration came to the conclusion that DOMA was unconstitutional because all laws related to sexual orientation — not just DOMA — should be subject to heightened scrutiny under the law. “Don’t Ask, Don’t Tell” would fall under this category.

In the wake of this determination for laws related to sexual orientation, the Ninth Circuit directs the government to clarify whether it will continue to defend “Don’t Ask, Don’t Tell.”

Dan Woods, an attorney with White & Case LLC who’s representing Log Cabin in the lawsuit, said the order in the case is “a really good thing” for opponents of “Don’t Ask, Don’t Tell.”

“It’s a really good thing that they’ve asked the government to decide whether they’re going to defend the constitutionality of ‘Don’t Ask, Don’t Tell’ or not,” Woods said. “They’re trying to have to both ways, and the Ninth Circuit is now forcing them to take an official position on that.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, also praised the Ninth Circuit for directing the U.S. government to make its position clear on “Don’t Ask, Don’t Tell.”

“The Court of Appeals for the Ninth Circuit is correctly pressing the Department of Justice and Department of Defense on whether or not they intend to defend the constitutionality of ‘Don’t Ask, Don’t Tell,'” Sarvis said. “It is our hope they will not continue to do so, and we will soon have finality with certification and repeal.”

In the order, the Ninth Circuit also notes that the U.S. government hasn’t asserted “Don’t Ask, Don’t Tell” in its most recent legal briefs defending the statute and observes that the gay ban is active despite the repeal law that was signed last year.

“Therefore, the central issue this court must address on appeal is whether the district court properly held that [‘Don’t Ask, Don’t Tell’] is unconstitutional,” the order states. “No party to this appeal has indicated an intention to defend the constitutionality of [‘Don’t Ask, Don’t Tell’] or to argue that the constitutionality holding of the district court should be reversed.”

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 Staffs certify the military is ready for open service. Troops have been undertaking training to prepare for “Don’t Ask, Don’t Tell,” but certification has yet to take place.

In addition to ordering the U.S. government to declare whether it will continue defending “Don’t Ask, Don’t Tell,” the Ninth Circuit directs both parties in the case — plaintiffs and defendants — to explain why the case shouldn’t be considered moot in the wake of passage of repeal legislation.

Woods said he’s prepared to refile briefs explaining why the litigation should remain ongoing to comply with the court order.

“We’re happy to brief this again and we don’t think the case is going to be moot, we don’t think it should be dismissed because, among other things, there’s still this talk about repealing the repeal [in Congress],” Woods said. “There’s a bill pending to repeal the repeal. That should make it clear that this case shouldn’t be dismissed.”

The order comes after a three-judge panel on the Ninth Circuit on Wednesday reinstituted an injunction prohibiting the federal government from enforcing “Don’t Ask, Don’t Tell” as a result of the case, known as Log Cabin Republicans v. United States. On Friday, the Pentagon issued a moratorium on discharges under the gay ban to comply with this court order.

Observers are still awaiting the decision from the Justice Department on whether it will appeal the decision to reinstate the injunction.

“We don’t know that,” Woods said. “They haven’t decided that yet. We haven’t heard from the government one way or the other whether they’re going to seek some further review of last week’s Ninth Circuit order.”

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New York

Two teens shot steps from Stonewall Inn after NYC Pride parade

One of the victims remains in critical condition

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The Stonewall National Memorial in New York on June 19, 2024. (Washington Blade photo by Michael K. Lavers)

On Sunday night, following the annual NYC Pride March, two girls were shot in Sheridan Square, feet away from the historic Stonewall Inn.

According to an NYPD report, the two girls, aged 16 and 17, were shot around 10:15 p.m. as Pride festivities began to wind down. The 16-year-old was struck in the head and, according to police sources, is said to be in critical condition, while the 17-year-old was said to be in stable condition.

The Washington Blade confirmed with the NYPD the details from the police reports and learned no arrests had been made as of noon Monday.

The shooting took place in the Greenwich Village neighborhood of Manhattan, mere feet away from the most famous gay bar in the city — if not the world — the Stonewall Inn. Earlier that day, hundreds of thousands of people marched down Christopher Street to celebrate 55 years of LGBTQ people standing up for their rights.

In June 1969, after police raided the Stonewall Inn, members of the LGBTQ community pushed back, sparking what became known as the Stonewall riots. Over the course of two days, LGBTQ New Yorkers protested the discriminatory policing of queer spaces across the city and mobilized to speak out — and throw bottles if need be — at officers attempting to suppress their existence.

The following year, LGBTQ people returned to the Stonewall Inn and marched through the same streets where queer New Yorkers had been arrested, marking the first “Gay Pride March” in history and declaring that LGBTQ people were not going anywhere.

New York State Assemblywoman Deborah Glick, whose district includes Greenwich Village, took to social media to comment on the shooting.

“After decades of peaceful Pride celebrations — this year gun fire and two people shot near the Stonewall Inn is a reminder that gun violence is everywhere,” the lesbian lawmaker said on X. “Guns are a problem despite the NRA BS.”

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New York

Zohran Mamdani participates in NYC Pride parade

Mayoral candidate has detailed LGBTQ rights platform

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NYC mayoral candidate and New York State Assembly member Zohran Mamdani (Screen capture: NBC News/YouTube)

Zohran Mamdani, the candidate for mayor of New York City who pulled a surprise victory in the primary contest last week, walked in the city’s Pride parade on Sunday.

The Democratic Socialist and New York State Assembly member published photos on social media with New York Attorney General Letitia James, telling followers it was “a joy to march in NYC Pride with the people’s champ” and to “see so many friends on this gorgeous day.”

“Happy Pride NYC,” he wrote, adding a rainbow emoji.

Mamdani’s platform includes a detailed plan for LGBTQ people who “across the United States are facing an increasingly hostile political environment.”

His campaign website explains: “New York City must be a refuge for LGBTQIA+ people, but private institutions in our own city have already started capitulating to Trump’s assault on trans rights.

“Meanwhile, the cost of living crisis confronting working class people across the city hits the LGBTQIA+ community particularly hard, with higher rates of unemployment and homelessness than the rest of the city.”

“The Mamdani administration will protect LGBTQIA+ New Yorkers by expanding and protecting gender-affirming care citywide, making NYC an LGBTQIA+ sanctuary city, and creating the Office of LGBTQIA+ Affairs.”

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U.S. Supreme Court

Supreme Court upholds ACA rule that makes PrEP, other preventative care free

Liberal justices joined three conservatives in majority opinion

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The U.S. Supreme Court as composed June 30, 2022, to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, the U.S. Supreme Court)

The U.S. Supreme Court on Friday upheld a portion of the Affordable Care Act requiring private health insurers to cover the cost of preventative care including PrEP, which significantly reduces the risk of transmitting HIV.

Conservative Justice Brett Kavanaugh authored the majority opinion in the case, Kennedy v. Braidwood Management. He was joined by two conservatives, Chief Justice John Roberts and Justice Amy Coney Barrett, along with the three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown-Jackson.

The court’s decision rejected the plaintiffs’ challenge to the Affordable Care Act’s reliance on the U.S. Preventative Services Task Force to “unilaterally” determine which types of care and services must be covered by payors without cost-sharing.

An independent all-volunteer panel of nationally recognized experts in prevention and primary care, the 16 task force members are selected by the secretary of the U.S. Department of Health and Human Services to serve four-year terms.

They are responsible for evaluating the efficacy of counseling, screenings for diseases like cancer and diabetes, and preventative medicines — like Truvada for PrEP, drugs to reduce heart disease and strokes, and eye ointment for newborns to prevent infections.

Parties bringing the challenge objected especially to the mandatory coverage of PrEP, with some arguing the drugs would “encourage and facilitate homosexual behavior” against their religious beliefs.

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