Court actions over the past week have given gay rights advocates a few glimmers of hope, though no one is staging victory rallies yet. The long slog toward full rights for gays and lesbians in the military, at the altar and in the pulpit each saw small steps taken. But President Obama, who vowed to promote equality for all, remains caught in such Through the Looking Glass dilemmas as the Justice Department’s mandate to defend the indefensible Defense of Marriage Act, which Obama would like to see repealed. Same thing with “don’t ask, don’t tell.” Alice would certainly find a trapdoor for falling down the rabbit hole on almost any stage where gay rights battles are being fought today.
San Francisco Chronicle writer Bob Egelko summed up the latest on one stage:
The federal judge overseeing a challenge to the “don’t ask, don’t tell” law, scheduled for trial in Southern California next week, has ruled in favor of a gay rights group on a crucial issue – how much evidence the government needs to justify the ban on openly homosexual members of the armed forces.
Obama administration lawyers have argued that courts must let “don’t ask, don’t tell” stand if they find that Congress could have reasonably concluded that excluding gays and lesbians would make the military more effective – the standard most favorable to supporters of the 1993 law.
But U.S. District Judge Virginia Phillips of Riverside, in her final pretrial ruling, said Wednesday that higher court rulings in recent years have raised the bar for the government to justify laws that single out gays and lesbians for harsher treatment. Because “don’t ask, don’t tell” intrudes on “personal and private lives” and “implicates fundamental rights,” Phillips wrote, the Justice Department must show that the ban serves an important public purpose that the military could not achieve some other way.
That principle comes from the 2003 Supreme Court ruling overturning state laws against private homosexual conduct, and from a 2008 ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco allowing a lesbian officer to challenge her discharge from the Air Force, Phillips said.
Her ruling opens the door for plaintiffs in the case to put gay and lesbian former service members on the witness stand to testify about how being thrown out of the military because of “don’t ask, don’t tell” damaged them. The federal law requires that gays and lesbians who acknowledge their sexual orientation be discharged from the military. Superior officers are barred from asking service members about their orientation.
The plaintiffs, the Log Cabin Republicans gay organization, plan to present researchers who contend the policy harms the military by promoting concealment and divisiveness while excluding qualified personnel. (It is, of course, the Republicans who are threatening a Senate filibuster of a military appropriations bill that includes a repeal measure…)
The Obama administration tried to bar the testimony, arguing that it was irrelevant, and urged Phillips to postpone the trial while Congress considers the president’s proposal to repeal “don’t ask, don’t tell.” President Obama has called the law discriminatory but says he must defend it as long as it is on the books.
On the marriage front, which currently has seen some states legalizing same-sex unions, some banning them and in California a suit to overturn the voter-approved ban, more state/federal convolutions are underway. Associated Press legal affairs writer Denise Lavoie Friday summarized what’s been going on in Massachusetts:
A key part of a law denying married gay couples federal benefits has been thrown out the window in Massachusetts, the first state to legalize gay marriage. The ball now lies in the White House’s court, which must carefully calculate the next move by an administration that has faced accusations it has not vigorously defended the law of the land.
President Barack Obama has said repeatedly that he would like to see the federal Defense of Marriage Act, known as DOMA, repealed. But the Justice Department has defended the constitutionality of the law, which it is required to do.
The administration was silent Friday on whether it would appeal rulings by U.S. District Judge Joseph Tauro. Spokespeople for the White House and the Justice Department said officials are still reviewing the rulings.
DOMA defines marriage as between a man and a woman, prevents the federal government from recognizing gay marriages and allows states to deny recognition of same-sex unions performed elsewhere. Since the law passed in 1996, many states have instituted their own bans on gay marriage, and a handful have allowed the practice.
And over at the annual General Assembly of the Presbyterian Church USA, meeting in Minneapolis
…delegates again approved ordaining openly gay or lesbian clergy. The measure now goes to the presbyteries, or local jurisdictions, where previous General Assembly resolutions to ordain gays and lesbians have been rejected. The General Assembly also debated but did not pass a resolution that would have changed the definition of marriage from a union between a man and a woman to a union of two people.
This Presbyterian writer can tell you that getting individual presbyteries — that’s the regional groups — to approve what the General Assembly delegates just approved is no simple matter. There are plenty of Christians, not to mention less than tolerant folks of every creed and color, down the rabbit hole.
‘Don’t ask, don’t tell’ foes win legal victory.