National
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.”
National
Long-time DignityUSA executive director announces retirement
Marianne Duddy-Burke has been with LGBTQ Catholic group for decades
The executive director of the world’s oldest LGBTQ Catholic organization has announced she will retire once her successor has been chosen.
Marianne Duddy-Burke has been with DignityUSA for more than four decades. She has been the group’s executive director since 2007.
DignityUSA announced Duddy-Burke’s retirement on Sept. 17.
Duddy-Burke during her tenure has urged the Vatican to do more to welcome LGBTQ Catholics. She has also, among other things, championed marriage equality and advised the State Department on LGBTQ-specific issues. (The Trump-Vance administration’s decision to freeze nearly all U.S. foreign aid shortly after it took office in January 2025 has had a devastating impact on the global LGBTQ and intersex rights movement and efforts to fight HIV/AIDS around the world. A report that Outright International released earlier this month notes 90 percent of LGBTQ and intersex rights groups around the world have lost funding since 2025.)
Duddy-Burke met with Pope Francis in 2023.
She traveled to Rome in 2025 for the papal conclave to choose the Argentine-born pope’s successor. Pope Leo XIV, who was born in Chicago, succeeded Francis.
DignityUSA in the press release that announced Duddy-Burke’s retirement notes she expressed “particular appreciation to people who spoke honestly about the reality of being a queer Catholic or family member.”
“I have been inspired every day by your stories and have done my best to lift them up,” said Duddy-Burke. “It is your lives, your faith, your struggles, your hopes that I have strived to reflect in my work, and doing this has been a great honor.”
DignityUSA President Meli Barber praised Duddy-Burke.
“It is almost impossible to sum up the scope and depth of Marianne’s achievements and contributions to DignityUSA over her more than four decades of service,” said Barber. “Under her wisdom and leadership, DignityUSA has only grown in stature as an advocate for LGBTQIA+ Catholics and as a visionary thought leader for LGBTQIA+ ministry and spirituality.
“Marianne has been more than an extremely able executive director,” added Barber. “Her care for and ministry to chapters, her deep personal relationships with countless Dignity members, her connections to LGBTQIA+ Catholics around the world, the relationships she has built with other progressive Catholic organizations, her skill as a public representative, the respect with which she is universally regarded, and her tireless devotion to service all leave an indelible mark. It is not an exaggeration to say that she has shaped not only Dignity but a generation of LGBTQIA+ Catholics.”
Barber said DignityUSA will “soon begin a search for a new executive director.” Barber added Duddy-Burke “will assist with the transition.”
National
Multi-billion-dollar 9/11 Victim Compensation Fund to continue until 2090
Married, same-sex partners are eligible for federal program
As part of its commemoration of the 25th anniversary of the 9/11 terrorist attacks, the September 11th Victim Compensation Fund, a federally operated program, released information during the past week showing it has awarded more than $18 billion to over 77,000 9/11 victims and their families since 2011.
Officials with what’s now referred to as the VCF point out that it was created to provide compensation to individuals or to a court-approved personal representative of a deceased individual who were present at one of the three sites where the hijacked jetliners crashed.
Among those supported under the program are thousands of rescue workers, clean-up crews, and residents living near the World Trade Center Twin Towers destruction site who became ill, many of whom later died, by being exposed to the toxic fumes created by the fire and falling debris.
“Twenty-five years since that day, the September 11th Victim Compensation Fund has served tens of thousands of victims and their families, and we continue to receive over 750 new claims each month — a clear indication of the ongoing importance of our mission,” said Allison Turkel, VCF’s leader, who holds the title of Special Master.
In a Sept. 2 briefing for the news media in advance of the 9/11 anniversary commemoration, Turkel pointed out that the VCF operation was upgraded and expanded by separate laws passed by Congress in 2011 and 2019, with the 2019 law signed by President Trump providing full funding to “pay all eligible claims and extended the filing deadline to Oct. 1, 2090.”
LGBTQ advocacy organizations in New York and nationwide have reported that during the time shortly after the 9/11 attacks same-sex surviving partners of 9/11 victims learned they were ineligible for compensation benefits because their same-sex relationships were not legally recognized.
Nicole Nava, a VCF spokesperson, told the Washington Blade that under long established VCF procedures, all applicants for benefit claims regarding a deceased person, whether same-sex or opposite sex, must be appointed as a Personal Representative of the deceased person by a state court. For D.C. residents, the probate division of the D.C. Superior Court appoints a Personal Representative.
“Claims for deceased victims (regardless of the cause of death) may be submitted only by the Personal Representative,” a statement on the VCF website says. “Each state has laws that define the process for appointment of the Personal Representative and the specific authority granted to that Personal Representative,” it says.
The Washington Blade couldn’t immediately determine the criteria for being approved as a Personal Representative by the D.C. Superior Court and various state courts, including whether a same-sex survivor partner would be eligible for such an appointment.
A spokesperson for the District of Columbia LGBTQ+ Bar Association, which includes many local attorneys who specialize in a wide range of specialized legal issues, couldn’t immediately be reached to find out if one or more of their members might be able to determine the same-sex partner eligibility for Personal Representative status.
VCF spokesperson Navas pointed out that the VCF regulations initially did not allow a legally married same-sex partner survivor to receive benefits under the VCF program because the then existing U.S. Defense of Marriage Act, which denied federal recognition of same-sex marriage, prevented VCF from providing benefits to a same-sex partner survivor who had been married in their home state.
But Navas noted that the regulations changed in 2013 when the U.S. Supreme Court declared the Defense of Marriage Act unconstitutional and were further changed in 2015 when the Supreme Court legalized same-sex marriage nationwide. Based on those changes, legally married same-sex partner survivors since 2013 and currently have been and are fully eligible for the VCF benefits.
The updated regulations would provide benefits to married same-sex partner 9/11 survivors in the states that legalized gay marriage beginning in 2004, when Massachusetts became the first state to legalize same-sex marriage. D.C. legalized same-sex marriage in 2009.
In her news media briefing, VCF Special Master Turkel said detailed information about how best to file a claim for 9/11 victim compensation is available on the VCF website.
“Twenty-five years since the events of September 11th , 2001, we know it has become increasingly challenging for claimants to find documents needed to prove their presence at an eligible location, which is one of the key requirements to be eligible for compensation,” she said.
She was referring to the requirement that 9/11 surviving victims seeking a claim for support for injuries or illnesses related to the 9/11 attacks must prove they were present at the World Trade Center site, the Pentagon site, or the Shanksville, Pa. site where the hijacked jetliners crashed.
“Our team is committed to ensuring no claimant feels lost or overwhelmed when submitting a claim,” Turkel said at the briefing. “We have a great helpline with real live people who can answer or refer any questions that come in,” she added. “They engage in over 4,000 calls a month on average. We encourage folks to call 1-855-1555 with any questions.”
The VCF website, which has additional detailed information, can be accessed at www.vcf.gov.
National
Remembering the LGBTQ heroes of 9/11 terrorist attacks
25 years later, ‘the heartbreak remains strong’
Many in the LGBTQ community in the D.C. area and throughout the country were expected to join friends, co-workers, and family members this week in commemorating the 25th anniversary of the Sept. 11, 2001, terrorist attacks on the New York World Trade Center’s Twin Towers and on the Pentagon just outside D.C. as well as the jetliner hijacking that ended in a fatal crash in an open field in Shanksville, Pa.
A total of 2,996 people died in the 9/11 attacks, including 19 terrorists who hijacked four jetliners whose passengers included Americans and citizens of many other countries.
Activists involved with local and national LGBTQ advocacy organizations recall witnessing a coming together of LGBTQ people and their co-workers, neighbors, and family members to support one another during a time of unimaginable horror and grief.
Among those who lost their lives in the 9/11 terrorist attacks was American Airlines co-pilot David Charlebois, an out gay man and member of the Gay Pilots Association, who was on American Airlines Flight 77, which the terrorists crashed into the Pentagon.
Also among the terrorist victims in the 9/11 attacks was gay public relations executive and rugby enthusiast Mark Bingham of San Francisco, who was among several passengers of the hijacked United Airlines jet who reportedly stormed the cockpit to regain control of the jetliner before one of the hijackers crashed the jet into the countryside in rural Pennsylvania.
The jet had taken off from Newark, N.J. with its destination being San Francisco. Investigators learned the hijackers turned the plane around and were heading to Washington, D.C., with plans to crash it into the White House or the U.S. Capitol.
The passengers, including Bingham, who stormed the cockpit and were among the 44 passengers and crew who lost their lives in the crash are credited by investigators and family members and friends with saving the lives of hundreds of others if the hijackers succeeded in crashing into the White House or Capitol.
Among the other LGBTQ people known to have lost their lives in the 9/11 attacks was Father Mychal Judge, 68, a gay Franciscan priest who served as a Catholic chaplain for the New York City Fire Department. According to the National Catholic Reporter, Judge rushed to the scene of the World Trade Center shortly before the Twin Towers collapsed. He was fatally struck by debris falling from the south tower while giving last rites to a fallen firefighter, the Catholic publication reported.
“He was a decent, wonderful human being,” said New York gay journalist Andy Humm, who had interviewed Judge for LGBTQ-related stories prior to the 9/11 attacks. “I saw him at many demonstrations for gay and AIDS causes, showing up in his Franciscan monk’s cassock,” Humm told the Washington Blade five years ago at the time of the 9/11 20th anniversary. “And he was equally beloved by the fire department, there at every major fire tragedy in the city, lending moral support to firefighters,” Humm said.
Francis DeBernardo, executive director of New Ways Ministries, a Maryland-based LGBTQ Catholic group that advocates for LGBTQ supportive policies within the church, reported five years ago that his group was supporting an effort to call on the Catholic Church to officially recognize Fr. Judge as a saint by canonizing him. But DeBernardo told the Blade this week that those efforts failed to obtain the needed support from various Catholic entities, including the Franciscan Order of Friars Minors, of which Judge was affiliated, ending efforts to canonize Judge as a saint.
DeBernardo has written a book about Judge’s life and legacy published in 2023 called “Mychal Judge:Take Me Where You Want Me to Go.”
Among the other widely reported LGBTQ victims of the 9/11 terrorist attacks were a gay couple from California, Daniel Brandhorst and Ronald Gamboa, and their adopted son, David, who were among those who died aboard the United Airlines flight that crashed in Pennsylvania. The Los Angeles Times reported that Brandhorst, an attorney, and Gamboa, the manager of a Santa Monica Gap store, had adopted three-year-old David when he was an infant.
For many LGBTQ residents of New York and the D.C. area, the suffering over the loss of loved ones, including same-sex partners, was heightened a short time later when they learned they were initially ineligible for local and federal programs aimed at providing financial assistance to survivors of the 9/11 attack victims because same-sex couples were not legally recognized.
At the urging of LGBTQ rights organizations, state and local officials in the New York and the D.C. area took steps to address the initial denial of financial support for surviving same-sex partners In programs under their control. Officials with a massive federal aid program for 9/11 survivors, however, said they did not have legal authority to authorize payments to same-sex partners.
The officials, in the administration of then-President George W. Bush, said the best they could do would be to leave it up to local authorities to determine whether state probate laws would recognize a same-sex partner as a family member for eligibility in the federal aid program for 9/11 survivors, many of whom lived in states outside the New York and D.C. area.
Nicole Nava, a spokesperson for the September 11th Victim Compensation Fund, a federally funded program established to compensate for physical harm or death caused by the 9/11 terrorist attacks, including support for surviving family members, said she would inquire into whether same-sex surviving partners were being supported under that program in subsequent years in response to a request from the Washington Blade.
Jenny Pizer, an attorney for the LGBTQ litigation group Lambda Legal, which supported LGBTQ partner survivors of victims of the 9/11 attacks, said the information she and her organization had showed that many if not most of the LGBTQ partner survivors were unable to obtain the federal Victim Compensation Fund payment benefits that married heterosexual spouses obtained. She said she didn’t have a definitive answer on whether some LGBTQ surviving partners were compensated.
However, at least one case where an LGBTQ partner was compensated was reported by the Washington Post in a Jan. 22, 2003, news story about Peggy Neff, the lesbian partner of 18 years of Sheila Hein, 51, a civilian employee at the Pentagon, who was killed when the terrorist hijacked jetliner crashed into the Pentagon.
The Post reported that the Sept. 11 Victim Compensation Fund, under the leadership of its director, Kenneth Feinberg, approved an award of $557,390 for Neff in compensation for the loss of her partner. The Post story quoted a spokesperson for the Human Rights Campaign as saying, “It is our sincere hope that this signals that other gay families who have suffered the loss of a loved one will be treated similarly.”
The compensation program, which is operated by the U.S. Department of Justice, remains in operation until 2090. The Blade will report on any additional similar awards for LGBTQ surviving partners if Nava provides such information.
Events commemorating the 25th anniversary of the 9/11 attacks were scheduled to take place this week at memorial sites honoring the 9/11 victims located outside the Pentagon in Arlington, Va., at the site of the World Trade Center Twin Towers in New York City, and the site of the jetliner crash in Shanksville, Pa., which is operated by the U.S. National Park Service.
The U.S. Congress in 2017 and 2021 approved separate bills signed by President Donald Trump during his first term in office and President Joe Biden creating the Global War on Terrorism Memorial and its construction, to be built on the National Mall in Washington, D.C. that’s scheduled to be completed in 2028.
The memorial, to be located near the Lincoln Memorial and Vietnam Veterans Memorial close to 23rd Street and Constitution Avenue, N.W., is intended to honor people who served and were lost in the wars and counterterrorism operations that followed the 9/11 attacks, including U.S. military operations in Iraq and Afghanistan.
Longtime LGBTQ rights advocate Jay Fisette, who at the time of the 9/11 attacks held the elected position of chair of the Arlington County Board, which serves as the county’s governing body, was among the Arlington officials that came to the Pentagon’s grounds in Arlington to oversee efforts by firefighters to rescue Pentagon workers on the day of the attack.
At an Oct. 7, 2001, 9/11 Day of Remembrance and Appreciation ceremony held in Arlington, Fisette expressed the views of many in the community in response to the 9/11 attacks.
“Tonight, our community gather as a family,” he told the gathering. “We gather in sorrow and in disbelief, in remembrance and appreciation,” he said. “But we come here, too, with resolve and pride. We come together as Arlingtonians who love our country, as Americans who love our country,” he said.
“Our enemies may hurt our bodies and destroy our buildings, but they will never defeat our determination to make this a world of peace and a community in which our children grow up safe and secure,” Fissette said.
Although some of the same-sex partners of those killed in the 9/11 attacks faced obstacles in obtaining financial support through the federal 9/11 relief program, Tom Hay, the surviving partner of 14 years of American Airlines pilot David Charlebois was treated with respect and honor by American Airlines officials and colleagues at Charlebois’s funeral mass at D.C.’s St. Matthew Cathedral.
More than a dozen uniformed company pilots and flight attendants attended the mass. And a press release issued by American Airlines mentioned Charlebois’s relationship with Hay and told how Hay stood with Charlebois when Charlebois advocated for equal rights for LGBTQ people in the airline industry through his involvement with the National Gay Pilots Association.
“David was an early member of the NGPA,” the American Airlines statement said. “His contribution helped ensure ongoing progress toward fairness and solidarity.”
Activists in New York have said the 9/11 attacks drew attention to the need for legal protections for same-sex couples, including the need for recognition of same-sex marriage, which the U.S. Supreme Court legalized nationwide in its landmark ruling in 2015.
But LGBTQ advocates in New York pointed to the difficulties LGBTQ surviving partners faced when desperately seeking to find out if a partner had survived at the site of the World Trade Center attack where the Red Cross and other emergency relief agencies set up a station near the site of the attack.
“Literally, gay people had to go there, turn around, go back home, and get some paperwork that spouses didn’t have to get to prove a relationship existed,” said Ross Levi, who at the time served as executive director of the New York LGBTQ advocacy group Empire State Pride Agenda.
“You were nervous and scared and sad and then you had to go through that,” Levi told the Blade in 2011 at the time of the 10-year anniversary of the 9/11 attacks. “And worse yet, other people turned them away, even with the paperwork, saying sorry you’re not a family according to our guidelines.”
Activists said New York City and New York State officials quickly recognized the inequities faced by same-sex partner survivors and took steps to change polices and laws to correct the situation. Among other things, New York’s then-Gov. George Pataki (R) issued an executive order in October 2001 that included surviving partners of gay and lesbian victims of the World Trade Center attacks in receiving full spousal benefits from the state’s Crime Victims Board.
In a separate development, the LGBTQ litigation group Lambda Legal, ESPA, the Human Rights Campaign, and other LGBTQ advocacy groups created the September 11 Gay & Lesbian Family Fund to provide some support to surviving same-sex partners who were ineligible for help from the federal relief fund program.
“The terrorist attack on September 11th is a tragedy that touched every American, impacting people and families from all walks of life,” Jonathan Lovitz, the Human Rights Campaign’s Senior Vice President for Campaigns and Communications told the Blade in a statement this week.
“As in all moments in American history, LGBTQ+ Americans were there, and feel the impact of this day,” he said. “As we remember the lives lost 25 years later, the heartbreak remains strong and the work to ensure that every person can live safe from violence in this country continues.”
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