Breaking: DoJ Files Emergency Request to Stay DADT Injunction

UPDATE: A three-judge panel has granted a temporary stay in Judge Virginia Phillips' ruling in the case of Log Cabin Republicans vs. The United States, giving the U.S. Military temporary powers to enforce DADT until the panel has a chance to consider the merits of the Justice Department's request.

The Metro Weekly blog Poliglot reports:

In a brief order, Judges O'Scannlain, Trott and W. Fletcher wrote:

"This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal.  The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010.  To expedite consideration of the motion, no reply shall be filed."

This means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide whether to issue a stay pending the appeal of the case to the Ninth Circuit.

This does not immediately change the military's policy of not enforcing DADT, as the Oct. 15 guidance from Undersecretary of Defense for Personnel and Readiness Clifford Stanley stated that, while seeking a stay, "the Department of Defense will abide by the terms of the injunction" and stated that "additional guidance" would come if a stay is granted.

This is not, however, a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide -- sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request -- whether to issue a stay pending the outcome of the appeal.

If a stay is granted pending the appeal, though, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.

This just in from The San Diego Gay and Lesbian News:

SAN FRANCISCO – Attorneys for the Department of Justice this morning asked the Ninth Circuit Court of Appeals for an emergency stay of Judge Virginia Phillips’ permanent injunction that prohibits enforcement of the military’s “Don’t Ask, Don’t Tell” policy.

"We respectfully request that the Court enter an administrative stay by today October 20, 2010, pending this Court's resolution of the government's motion for a stay pending appeal, which would maintain the status quo that prevailed before the district
court's decision while the Court considers the government's stay motion," the DOJ attorneys wrote in their filing with the court.

The legal action was expected.

On Tuesday, Judge Phillips had denied the DOJ’s request for an emergency stay and DOJ attorneys said they would appeal that decision.

Meanwhile, the Pentagon is allowing gays and lesbians to enlist. Dan Choi, who was drummed out of the military because of DADT, tweeted this morning that he passed the Army's written test today. But the legal mess could complicate the future service of any enlistees who declare they are gay or lesbian, should DADT policy go back into place.

Related articles

• Justice Department Files For Emergency Stay On Injunction Ending DADT Enforcement (lezgetreal.com)
• DOJ asks Ninth Circuit for emergency stay in DADT case by today (americablog.com)
• Judge Phillips: There Will Be No Waiting On My DADT Ruling, OKTHXBI (queerty.com)
• Judge Rejects Government's Request for Stay of DADT Injunction (towleroad.com)

Veteran Airman to Challenge DADT Discharge in Court

This just in from from SLDN Executive Director, Aubry Sarvis:

[On Wednesday], Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP (MoFo) sought to block the discharge of their client, Lt. Col. Victor Fehrenbach, under "Don't Ask, Don't Tell" (DADT). 

Nearly 19 years ago Lt. Col. Fehrenbach signed up to serve in the Air Force. Today our nation stands on the verge of losing this highly decorated combat aviator because of this discriminatory law. Flying nearly 90 combat missions in Iraq, Afghanistan, and Kosovo, Lt. Col. Fehrenbach is without a doubt an American hero, who has shown time and again he is willing to risk his life for his country. 

Yet even as we are fighting two wars and need the best and brightest, the government is poised to fire yet another brave patriot because he's gay. 

The Air Force Secretary can do the right thing and retain Lt. Col. Fehrenbach under the Pentagon's own recently revised regulations on "Don't Ask, Don't Tell." If Secretary Donley does not step in, this nation will lose a service member worth $25 million in training whose skill sets are desperately needed today. 

Lt. Col. Fehrenbach's case demonstrates the urgent need for the Senate to act on pending legislation to repeal DADT.

Upon its return after Labor Day, the Senate must immediately take up and debate the DoD spending bill, which contains language that provides a path to get rid of DADT. 

Urge your two senators to join Senate Majority Leader Harry Reid and Senate Armed Services Committee Chairman Carl Levin in pushing for Senate action. 

Contact both your senators today and tell them to repeal DADT.

www.sldn.org/HelpVictor 

The pending discharge of Lt. Col. Fehrenbach dramatically underscores that DADT is still the law and all gay, lesbian, and bisexual service members should be on notice. 

It also sends a clear message that the fight to end DADT is nowhere near finished. The discharges under this terrible law continue as more service members are fired for their sexual orientation. Unless we have full repeal soon, the discharges DADT inflicts upon our service members will not end.

Join SLDN and the entire repeal coalition as we push senators in all 50 states to take up repeal legislation in September. Tell your senators that delaying action on repeal is not an option. Brave patriots like Lt. Col. Fehrenbach have already waited too long for justice. The Senate must do what's right and show due respect to all service members who risk their lives to keep America free.

Contact your senators today and urge them to help Victor by voting to end this discriminatory law. 

www.sldn.org/HelpVictor 

Each senator will play a decisive role in the Senate's expected repeal vote next month. Although the Senate is not in session now, the battle to end DADT rages on. Lt. Col. Fehrenbach's potential discharge shows why this is no time for repeal supporters to let up or tune out.

Thank you for contributing your voice to this fight for patriots like Lt. Col. Fehrenbach.


Aubrey Sarvis
SLDN Executive Director

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Va. Employers Can Now Offer Life Insurance to Partners of Gay Employees

How did this one get in under the radar? Is Virginia Governor Bob McDonnell softening his position on LGBT rights or is this just a ploy to make himself look less hateful in the wake of his recent string of homophobic policies?

It's more likely that Taliban Bob is feeling the a sense of urgency over Northrop-Grumman's yet to be announced decision on where to relocate their corporate headquarters. The company announced plans last year to relocate to the DC metro area. There has been a lot of pressure on the aerospace giant from LGBT rights groups to avoid Virginia due to our homophobic laws and instead choose the more queer-friendly environments of either Maryland or the District of Columbia.

From dcAgenda:

A bill enabling Virginia companies to offer life insurance benefits to the same-sex partners of employees became law earlier this month after Virginia Gov. Bob McDonnell (R) signed the measure.

The new law, approved by both chambers of the Virginia General Assembly with unanimous votes, was enacted after McDonnell signed it April 7.

Stacey Johnson, a McDonnell spokesperson, said the governor signed the bill into law because it passed with broad bipartisan support in the House and Senate. “In addition, it will have no fiscal impact on Virginia’s taxpayers,” she said. “The governor believes a decision about who an employer can extend life insurance coverage to should be made by the group policy holder and the insurer.”

Previously, state law permitted Virginia residents to take out group life insurance coverage only for a legal spouse or a child under age 25. But the new statute, which takes effect July 1, broadens that group of people to include anyone with whom a Virginia resident has a substantial and economic interest, including a same-sex partner.

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Judge Overturns Arkansas Gay Adoption Ban

In a move that gives the finger to former Arkansas governor/homophobe Mike Huckabee, an Arkansas judge struck down law a banning adoption by gays and lesbians. Huckabee, the failed presidential candidate, made headlines last week for comparing gays and lesbians to drug users and saying that allowing us to adopt was and experiment and that "children are not puppies". The New York Times reports:

A judge on Friday struck down a law approved by voters that banned gay couples and other unmarried people living together from being adoptive or foster parents. Judge Chris Piazza of Pulaski County Circuit Court said, “Due process and equal protection are not hollow words without substance.” A group of families, represented by the American Civil Liberties Union, sued in 2008 to overturn the ban. They argued that there were too few families willing to adopt or serve as foster parents in Arkansas, which has an average of 1,600 children on waiting lists. The law effectively banned gay men and lesbians from adopting or fostering children because they may not legally marry in Arkansas.

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Army Sec. McHugh clarifies: "No, seriously. Don't tell." Speak up for those who can't!

Secretary of the Army John McHugh says he misspoke earlier this week when he said that gay and lesbian soldiers would not be kicked out during the year-long study on the effects of Don't Ask, Don't Tell repeal. Despite wanting to talk to queer service members during the course of the study, McHugh says he didn't mean to infer that a stop-loss would be in place. So that whole "feel free to ask and tell" thing isn't part of the deal.

Advocate.com reports that McHugh released a statement on Thursday saying, "Until Congress repeals 'don't ask, don't tell,' it remains the law of the land and the Department of the Army and I will fulfill our obligation to uphold it," McHugh said in a statement Thursday. "There is no moratorium of the law and neither (Gates) nor I would support one."

So the year-long study will not include any input from the people most affected by DADT and its repeal, if it ever happens. Is it just me, or does anyone else see this as a major slap in the face? Its just one more way the administration says to the LGBT community, "Trust me, I know what I'm doing. Now shut up and sit down."

We will not shut up and sit down. We will not allow our voices to go unheard as this year-long stalling tactic takes place. We will not only ask, we will demand that our leaders stand up for our rights. We will tell our stories as clearly and loudly and as often as it takes until our rights are fully protected under the law.

I am putting out the call to all gay and lesbian military veterans in the Roanoke area to join me tomorrow, Saturday, April 3rd at 3pm at Mill Mountain Coffee & Tea, 112 Campbell Ave. (on the City Market) as we meet with Terry McGuire from the Human Rights Campaign to plan a lobbying session at the Roanoke office of Sen. Jim Webb, asking for support in the effort to repeal Don't Ask, Don't Tell.

Terry has been organizing these lobbying efforts throughout the commonwealth over the last several weeks. Webb's office has not yet responded to Terry's numerous attempts to make an appointment. He will be in the Roanoke area over the next few days to get the details nailed down.

Like a lot of bloggers, I've been critical of some of the statements coming from HRC president Joe Solmonese, but I also believe in giving credit where credit is due. This is a truly worthwhile effort. This is our chance to prove that Southwestern Virginia's LGBT community can and will stand up for our rights.

Speak out for those who can't without losing their jobs. Join us tomorrow to find out what you can do to change this unjust law that not only discriminates against our community, but seriously impairs our nation's ability to defend itself.

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Cooch talks about Gay Rights, Health Care at Liberty University (video)

Roanoke's Jay Warren of Newschannel10 caught up with Virginia's attorney general Ken Cuccinelli at Liberty University in Lynchburg on Tuesday where the arch-conservative joked, "I’ve been in two-and-a-half months, and it’s been pretty boring." Pardon me if I fail to see the humor.

Warren grilled Cuccinelli about his notorious letter to Virginia's colleges and universities, known as "the campus letter". The A.G. told Warren, “They (colleges) went beyond their state law authority. Everyone has the potential for protection under the Equal Protection Clause of the federal Constitution, but that’s not a specially protected class.“

In other words, LGBT Virginians have "the potential" for full protection of federal law, but no "actual" protection under state law.

Warren followed up by asking, “So if they were fired if they were gay, could you defend that? Defend the university for the firing?“ Cuccinelli responded, “Arguments could made on either side of that. We could defend the university, it would be uncomfortable.“

Warren asked if being gay was a fireable offense to which the top lawyer in the commonwealth answered, "No."

Warren also asked Cuccinelli about his participation in the federal lawsuit challenging the recently passed Health Care Reform Bill. Critics have complained about the cost of fighting this battle with Virginia's economy still deep in the red. Cuccinelli insists that the expense will be minimal and no staff will be pulled from their regular assignments. He says the entire expense will be the $350 fee required to file the suit.

See the full interview below.

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DC Judge says No to Gay Marriage Ballot Initiative

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WASHINGTON (AP) — A judge in Washington, D.C., has thrown out a lawsuit by opponents of gay marriage against the city's elections board.

Plaintiffs led by a Maryland pastor, Bishop Harry Jackson, sued after the Board of Elections and Ethics refused to put their initiative on the ballot. The measure would have defined marriage as between a man and a woman. The board ruled it violated the city's Human Rights Act.

D.C. Superior Court Judge Judith N. Macaluso ruled Thursday in favor of the city. She said the board's action was justified because the initiative would in effect authorize discrimination.

The District of Columbia passed a bill in December that would let same-sex couples marry. Because the city is a federal district, the law is pending a period of review by Congress.

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Portugal allows gays to marry, but not adopt

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On Friday the Portuguese parliament passed legislation granting same-sex couple the right to marry, but stopped short of allowing gays and lesbians to adopt. While we applaud Portugal's move into the 21st century, the adoption ban flies in the face of the argument anti-gay forces have presented for years, that marriage is for having kids and raising a family.

Reuters reports:
LISBON (Reuters) - The Portuguese parliament on Friday passed the Socialist government's bill to legalise same-sex marriages, which Prime Minister Jose Socrates said was an historic step in the country's fight against discrimination.

Socrates' minority government pushed the bill through the house with support from left wing parties, while alternative proposals by the centre-right opposition for civil partnerships and a referendum on the issue were rejected.

"It is a small change in the law, but a very important and symbolic step to fully realise values that are pillars of open, tolerant and democratic societies; freedom, equality and non-discrimination," Socrates told parliament ahead of the vote.

The bill gives gay marriages the same rights as heterosexual marriages, including those on taxes, inheritance and housing, but does not offer them the right to adopt children.

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Lisa Miller Brings Fight for Equality Back to Va. (Do Va.'s Gays Even Care?)

Most LGBT Virginians assume that our fight for equality ended with the passage of the 2006 Marshall/Newman  constitutional amendment, which banned same-sex marriage in the commonwealth. Most political insiders in Virginia acknowledge that the move was nothing more than a political strategy on the part of Virginia' s republicans to rally and solidify their base. Democratic political strategist and Roanoke native, Dave "Mudcat" Saunders, who actively fought against the amendment, said at the time, "It is political trickery - it has nothing to do with queers and marriage. It is to help Republicans, in general, unite their base in the name of hate."

Four years after Virginia's queer community rolled over and accepted defeat, the issue of same-sex marriage and child custody rights has been forced back on our doorstep with the child custody battle involving Janet Jenkins and Lisa Miller. The couple had entered a civil union in Vermont in 2000. In 2002, Miller became pregnant by artificial insemination and gave birth to daughter Isabella. The couple broke up in '03, whn Miller found Jesus and decided she wasn't gay anymore.

Lisa Miller moved her daughter to Virginia in the believing  that our homophobic laws would protect her from having to honor Vermont's custody ruling. A Vermont judge ad awarded primary custody of 7-year-old Isabella to Jenkins in light of Miller's refusal to honor Jenkins' visitation rights. The legal battle followed her to Virginia, where Jenkins filed suite. The Bedford County (Virginia) Court found in favor of Jenkins and ordered Miller to turn over the child last Friday at the home of Jenkins' parents in Falls Church.

Miller, a member of the late Jerry Falwell's Thomas Road Baptist Church, has gone into hiding with her daughter and faces contempt charges. A statewide hunt is now under way. ACLU attorney, Rebecca Glenberg, who represents Miller, told the Lynchberg News and Advance,“We expect Virginia law enforcement to take whatever actions they can to locate the child and make sure the custody order is complied with.”


Maj. Ricky Gardner of the Bedford County Sheriff's Department released a statement on Wednesday saying, “We have been and are, as I write this, working with the Fairfax Co. Police Department and officials in Vermont on this matter. That’s all we have at this time.”

Here's where I go off.

If Lisa Miller had taken her daughter to some other homophobic state, none of us would care about this story. Why? Because Virginia's LGBT community can't be bothered. We pat ourselves on the back for joining activist groups on facebook, but when we are called upon to get off our asses and join together in the real world to create real change, it's too inconvenient. We have done absolutely nothing to fight for our own rights. We don't vote or get involved in anything political. We did nothing to fight the passage of the Virginia Marriage Amendment.

Of the 36 members of the Roanoke Equality group on facebook, only four have bothered to show up at our first two meetings. Don't give me the excuse that you're too busy. It just doesn't fly. Our enemies know that we can't be bothered and they love it. Our own apathy is their greatest weapon against us.

A wise man once said "Civil rights are never handed down from on high. They are fought for from below."

Be ashamed of yourselves, Queer Virginia. Be very ashamed.

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Ex-Lesbian Mom on the Run with Daughter

More embarrassing news from the comedy-wealth of Virginia. It seems a lesbian couple, Lisa Miller and Janet Jenkins, who got civilly unionized in Vermont in 2000, went through an extremely uncivil divorce in '03, when Miller found Jesus and decided she wasn't gay any more. The wrinkle here is that Miller got pregnant via artificial insemination after the union was formalized, resulting in a daughter who is now at the center of a bitter custody battle.

In 2003, after the couple broke up, Miller fled from blue Vermont to redneck Virginia in order to avoid the shared custody ordered by the Rutland County, Vermont court. Miller now considers rug munching sinful and doesn't want her daughter raised by a sister of Sappho. The court found that Jenkins should be awarded primary custody in light of Miller's refusal to allow visitation by her former spouse.

In a surprising twist, when the legal battle spilled over into Virginia, the courts here repeatedly found in the favor of honoring the Vermont court's decision. The child was to be turned over to Ms. Jenkins on January 1st.

Rather than submit to the custody order, the born again ex-lesbian decided it was better to go into hiding with the child and is now on the lam. Miller has not made contact her her attorneys for over a month. Her whereabouts remain unknown.

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This Queer Little Planet: Texas Gay Marriage Ban Puts All Marriages in Legal Limbo

Karma: it's not just for Hindus any more. 

Texas candidate for attorney general, Barbara Ann Radnofsky, has revealed that the 2006 amendment to the Texas state constitution banning same-sex marriage may have put all marriages performed in the Lone Star State at risk due to a poorly worded phrase in the discriminatory law.

The Star-Telegram Reports:

Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that "marriage in this state shall consist only of the union of one man and one woman." But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares:

"This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively "eliminates marriage in Texas," including common-law marriages.