hunter of justice

Seeking asylum from the U.S. military

A young lesbian who enlisted to serve in the U.S. Army and then fled after prolonged physical and verbal abuse has won reinstatement of her application for asylum in Canada. A Canadian appellate court ruled that the Canadian Refugee Board had failed to give sufficient weight to the arguments made by Private Bethany Smith that, because of her lesbianism, she could not receive a fair trial within the American military.  The court noted that 10 years ago, another gay soldier - Barry Winchell - was murdered at the same base where Private Smith had been stationed (Fort Campbell, KY), in what apparently was a hate crime.

From Women's e/news, with a HT to Marcy Karin:

For months, Pvt. Bethany Smith silently endured taunts and physical abuse from her fellow soldiers at Fort Campbell, Ky., for being a lesbian. But when she received an anonymous note one day with a threat against her life, Smith decided she had to get out of the Army.

"It said that they were going to break into the supply room and get the keys to my room and beat me to death in my bed," Smith said, adding that the letter came only a couple months after she learned the Army was deploying her to Afghanistan. "It was at that point that I knew I was more afraid of the people who were supposed to be on my side than people we were supposed to be fighting overseas."

More than 12,000 service members have lost their jobs because of the U.S. military's so-called "don't ask, don't tell" policy. A disproportionate number of those discharges are women, according to 2008 statistics gathered by the Washington-based Servicemembers Legal Defense Network from the government under the Freedom of Information Act.

With the help of an acquaintance, Smith abandoned Fort Campbell and drove for two straight days to Canada, where she hoped to seek asylum. She crossed the border on Sept. 11, 2007. More than two years later, Smith, now 21, is fighting to stay in Ottawa, where she works for a call center.

Her efforts to obtain refugee status were boosted in November when a Canadian federal court judge decided her case should be reconsidered by the country's refugee board, which had earlier rejected her claim....

Smith assumes she would face a court martial for desertion in the United States and possibly further charges for having same-sex relations. She also believes that a court martial would consist of her peers, who would likely share the same views about her sexual orientation as her tormentors.

Jamie Liew, her lawyer, says Smith's father has received a visit from police with an arrest warrant related to her flight from the Army. Court documents also state Smith received a text message from a soldier from her base threatening that she deserved to be killed for deserting the unit.

Smith's case, believed to be a first, is based on anti-homosexual persecution within the U.S. military, says Liew, rather than on a reluctance to serve overseas, as has been the case for a multitude of other U.S. soldiers who have fled to Canada to avoid serving in Iraq and Afghanistan.

"The idea that she would be deployed with people who were giving her death threats is a problem," Liew said. "If people in your unit are not there to have your back, you would be killed in a war and you wouldn't even know if it was because of friendly fire, of enemy fire or because of someone deliberately firing at you . . . Her situation is unique in that way."...

Dem Senators and Clinton on gays in the military, 1993

From Joan Walsh at Salon who is reviewing the new Taylor Branch book, The Clinton Tapes:

There are some wonderful windows on policy triumph and disappointment: [Branch] depicts a stormy but funny meeting of Democratic senators to tell Clinton why they'll block any liberalization of policy on gays in the military. Robert Byrd leads off fulminating about the immorality of homosexuality, and Clinton tries to head him off by noting that adultery is immoral (ahem) but we don't dismiss military folks for cheating on their spouses. Sam Nunn raised the unit cohesion argument (there was a lot of discussion of those close quarters, especially on Navy ships!). Clinton observes Sen. Ted Kennedy on the sidelines: "I couldn't tell if Teddy was going to start giggling or jump out the window" as the talk turned to the bawdy, omnisexual practices of ancient Greek and Roman warriors.

But at the end of the day, Clinton said, he was surprised by the fact that he couldn't tell which of the opponents truly believed it was bad to have gays in the military (or anywhere else); all they discussed was the politics of the proposal. That theme would recur. Clinton was the consummate horse-trader, no steely ideologue, but even he was surprised at the extent to which politics trumped policy, or even the silly idea of what's right or what's best for the country, in every single debate.

Supreme Court denies cert in DADT case

This morning the Supreme Court denied certiorari in Pietrangelo v. Gates, meaning that the First Circuit's opinion upholding DADT (in Cook v. Gates, 528 F.3d 42) is the final word in that lawsuit.  The case was interesting because of the split it engendered among lgbt advocates and because the Justice Department's obligation to file a response to the cert petition forced the new administration to walk a line between defending a federal statute, as DoJ almost always does, and not defending too strongly a system that the President has said he opposes. (background here) No one expected anything other than the cert denial that has now been announced.

Another big week ahead + Correction and updates

NH UPDATE - Tuesday is NOT the deadline for New Hampshire Governor Lynch  to sign, veto or allow the bill legalizing gay marriage to become law without his signature.  It turns out that the phrase "it has gone to the governor's desk" is less than precise. Various formalities delay the official date of transmission.  In fact, it has not gotten to the governor yet, officially, and he will have five days after that date to decide.

Tuesday - The New York State Assembly will vote on and surely pass a gay marriage bill.  Then it's a six-week countdown until the end of the legislative session, which equates to the time left for advocates to persuade a few more state senators to vote yes.  As always in NY, the question for any progressive legislation is whether it can get through the Senate. The NY Times reports that the votes aren't there yet. The Dems hold 32 seats, the number of votes needed to pass it. But, four Dems have said they will vote against it, and no Republicans have yet come forward as yes votes, though the Republican leader has released them to vote their consciences.

UPDATE - Yup, the Assembly did exactly as predicted.

Wednesday - Secretary of Defense Gates and Joint Chiefs of Staff Chair Mullen will testify before the House Armed Services Committee. Expect questions on DADT.

Thursday - the next possible day for the California Supreme Court to rule in the case challenging Prop 8.

UPDATE: Nope, not gonna happen Thursday.  Maybe next Monday. (The court releases opinions on Thursdays and Mondays.)

Justice Dept does the obvious thing in second DADT case

Yesterday, the Justice Department filed its opposition to certiorari in the DADT case involving one of the plaintiffs in Cook v Gates, 528 F.3d 42 (1st Cir. 2008), who had asked the Supreme Court to review the Court of Appeals decision upholding the military's policy. The other 11 plaintiffs asked that the Court not grant review, even though they had  lost. (See below for why)

There is virtually no chance that the Court will take the case, since the precedent for rejecting facial challenges to this policy is unanimous.  Nonetheless, the Department, through the office of the solicitor general, had to respond to the petition.

The most interesting thing about the opp cert brief is that it is the first document related to an lgbt rights issue filed with the Supreme Court by the Obama Justice Department, and so it provides the first glimpse of how the new team will approach gay issues. The answer seems to be - with political savvy.

The brief can perhaps be best described as minimalist. It was clearly crafted to do the least possible damage to future efforts to eliminate DADT either in the courts or in Congress. Although it does state that "[t]he decision of the court of appeals is correct," it successfully ducks the issue of which standard of review the Court should apply in testing laws that discriminate based on sexual orientation, by arguing that military cases are unique. 

The plaintiff had asked the Court to take the case to address what the standard of review should be post-Lawrence v. Texas. The Department argued that "[a]pplying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals properly upheld the statute. ...The court's decision upholding [DADT] rested not on its choice of a formal standard of review, but on its strong deference to Congress's judgments on matters relating to the armed forces."

The other plaintiffs in this case asked the Court to deny review so that a better case in a different circuit (Witt v. United States) would not be cut off from further factual development, a strategy that Justice has enabled by declining to seek Supreme Court review of the 9th Circuit decision that the government lost in Witt. Details here.

Justice Dept does the right thing in Witt case

According to the Washington Blade, the Justice Department has decided not to seek review in the Supreme Court in Witt v. United States, in which the 9th Circuit had ruled that in order for Major Witt's discharge to be valid, the government will have to prove that her presence caused actual harm to unit cohesion.

More explanation of the context and consequences is here. The bottom line is that this is the best outcome for lgbt advocates, both in and out of court.  It prevents the case from going now to the Supreme Court, which is a graveyard for challenges to military policies, and keeps the case alive in the lower courts, where it can be used to bring pressure on Congress to repeal DADT.

Obama administration hits pause on the repeal DADT button

Given the debacle that led to Don't Ask Don't Tell at the beginning of the Clinton administration, I don't really blame Obama for wanting to prioritize other things first, like taking over the auto industry. The White House, the Justice Department and Congress all seem to have put DADT repeal deep in the file marked "after the 2010 midterms."

SecDef Gates remarked as much on Sunday, when he told a reporter that

Any change in the policy would require a change in the law. We will follow that law whatever it is. That dialog though has really not progressed very far at this point in the administration. I think the President and I feel like we've got a lot on our plates right now and let's push that one down the road a little bit.

Meanwhile, the two lawsuits on a possible Supreme Court track have also been slowed down. In one, Witt v Air Force, the ACLU of Washington won a ruling that the Defense Department had to prove actual harm to unit cohesion would follow absent discharge of a 19-year veteran Air Force nurse. (See analysis here.) The Solicitor General's office originally had until April 3 to decide whether to seek Supreme Court review or let the case go back to the district court and attempt to make the required showing (or try to settle it). Now, at the SG's request, their deadline has been extended (for the second time) until May 3.

That's three days before the same office must respond to a cert petition filed by James Pietrangelo, who together with 10 other plaintiffs, sued in the First Circuit to overturn DADT.  (The SG's office also got an extension of time in this case as well.) The wrinkle in that case is that SLDN, who originally represented all the plaintiffs, opposed the cert petition, and filed its own statement asking the Supreme Court to defer review of DADT pending further proceedings in Witt and attempts in Congress to repeal the policy.

I doubt that the SG will get any additional deadline extensions, so in the first week of May, we'll know how the White House will weigh in vis-a-vis the courts.

Witt is the one to watch. There is no reason for the SG to do anything in the other case but oppose cert and let the the First Circuit case that upheld DADT stand, especially since that's what even the lgbt advocacy groups want. But in Witt, the administration has to decide whether to seek review of a decision they lost. If they do, this Supreme Court will almost certainly grant cert and reverse the Witt decision, given the current state of precedent. But since that decision does not hold the policy facially invalid, DoJ could choose another path. Whether they do will be the acid test - the first - of where this administration is going to stand on lgbt rights.

Given what a basketball fan the big O is, it shouldn't be a surprise that he knows how to run a four-corner stall when he wants to.  Meanwhile, public opinion has moved, even if the politicos haven't. According to Pew Foundation polls, a 60 per cent majority of Americans had figured out roughly four years ago that DADT was a loser, albeit with the typical splits among social groups:

"Republicans are divided over this proposal: a majority of conservative Republicans (57%) oppose allowing gays and lesbians to openly serve in the military compared with 37% who favor letting them serve. By about two-to-one (62% to 30%), moderate and liberal Republicans favor permitting gays and lesbians to serve in the armed forces.

"Eight-in-ten liberal Democrats (79%) support allowing gays to serve in the military while just 18% oppose the proposal. A smaller majority of conservative and moderate Democrats (60%) favors permitting gays to serve openly while 29% are opposed.

"More women than men favor letting gays and lesbians serve in the military (66% vs. 52%). There also are large differences among religious groups in views on this issue. By about five-to-one (77% to 15%), the religiously unaffiliated favor allowing gays to serve; smaller majorities of white Catholics (65%) and white mainline Protestants (62%) express this view. By comparison, 38% of white evangelical Protestants support allowing gays to serve openly in the armed forces while 55% are opposed."

When will the beltway boys catch up?

First lgbt litigation decision looms for Obama Justice Department

Just about exactly three months ago, the U. S. Court of Appeals for the Ninth Circuit dened rehearing in Witt v. United States, in which a panel of that court had ruled in May that Major Margaret Witt could not be discharged from the Air Force for having engaged in homosexual conduct unless the Air Force could prove that her conduct in fact hurt morale or jeopardized another government interest. Now the Air Force has two choices.  It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court.

Normally a party has 90 days after a ruling to file a cert petition, which would mean that the government would have to file or forego a cert petition this week. But the government is obtaining an extension of 30 days, so the deadline will come up in the first week in April. This is probably a good thing, since it gives the Solicitor General's office in the Justice Department time to get its act together. Witt will be the first test of whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors.

The political views of the POTUS or of brand new Solicitor General (and former Harvard Law dean) Elena Kagan are not necessarily dispositive. DoJ has an institutional responsibility to defend the validity of federal laws, even federal laws that the current administration does not support. In this case, however, DoJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case.

In order to do that, the Court of Appeals had to find that the government's actions abridged especially important rights.  In the best federal court decision interpreting Lawrence v. Texas since that 2003 ruling, the Ninth Circuit panel stated -

We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further than interest, and the intrusion must be necessary to further that interest.  In other words, for the third factor, a less intrusive means must be unlikely to achieve substantially the government's interest.

Everyone knows that the government can't meet this burden in Major Witt's case and probably can't do so in the great majority of discharges based on homosexual conduct. Discharges of lesbian and gay servicemembers would come to a halt if this standard had to be met in every case.  So the Witt resolution is not viable in the long run. But declining to seek cert and then, probably, settling the case would force Congress, the White House and the Joint Chiefs to deal with this sooner rather than later.

We'll all be watching what happens in Witt.

Executive authority could end Don't Ask Don't Tell

Following is a guest post by Stephanie Farrior (VT Law):

In her article Let the Small Changes Begin: President Obama, Executive Power, and Don’t Ask Don’t Tell, Professor Jackie Gardina of Vermont Law School writes:

President Obama should not wait for Congress to act.  He has both the constitutional and statutory authority to implement change immediately.

In her article, she:

• discusses the historical context of Don’t Ask Don’t Tell, specifically focusing on the lessons of the Clinton era and President Clinton’s successful use of executive power to improve the lives of gay and lesbian service members;
• explains why President Obama must act pending congressional action, describing the status of repeal efforts in Congress and exploring potential barriers to success;
• dissects the recent circuit court decisions on Don’t Ask Don’t Tell, which interestingly set the stage for President Obama’s first executive decision on the issue — whether to seek certiorari in Witt v. Air Force;
• provides examples of five amendments to the current DoD directives implementing the statute that would improve the lives of the estimated 65,000 gay and lesbian members serving under the shadow of the statute.

Disproportionate impact on women, and particularly African-American women

A disproportionate number of service members discharged from the military due to Don’t Ask Don’t Tell are women, and in this group, African-American women are disproportionately discharged.  According to information obtained through a FOIA request by the Servicemembers Legal Defense Network:

• • In 2006: women made up 17 percent of the Army but 35 percent of discharges under the “don’t ask” law;
  • In 2007: women made up 15 percent of Army members, but 45 percent of the discharges under that law;
  • In 2007: women made up 20 percent of Air Force members, but 49 percent of the discharges for homosexuality, up from 36 percent in 2006.

Pressure on servicewomen not to report assault

Rep. Louise Slaughter: DoD Shirks Congressional Oversight of Sexual Assault in the Military

Last Thursday, I gave testimony on sexual assault in the military at a House Oversight and Government Reform subcommittee oversight hearing. Kaye Whitley, director of the Department's Sexual Assault Prevention and Response Office, had been subpoenaed to testify at Thursday's hearing, but apparently Department of Defense officials instructed her to stay away from the hearing.

I am very disturbed by the DoD's resistance to Congressional oversight on sexual assault. The DoD's decision to keep Dr. Whitley from testifying undermines the progress the Pentagon has made in addressing sexual assault by suggesting that there is something to hide.

Right now the DoD allows two options for reporting sexual assault: restricted reporting or unrestricting reporting. Filing a restricted report means the victim can receive healthcare services and counseling, but command is not notified and no investigation is conducted. Unrestricted reporting means that command is told, but the victim must submit broad medical records and any communication they had regarding treatment is open to the scrutiny of the chain of command. Quite simply, the current structure makes women who have suffered sexual assault choose between confidentiality and justice.

It is unconscionable that women who serve their country in the military should have to make that decision....