Updates on DADT, DOMA, & Prop. 8 federal case

By: Monica Davis

1. Don’t Ask Don’t Tell
On September 20th, 2011 the nearly two-decade-old policy that prohibited gay, lesbian, and bisexual people from serving openly in the military is officially over. Don’t Ask, Don’t Tell, enacted on December 21, 1993, was the official United States policy that prohibited openly gay, lesbian, and bisexual individuals from serving in the military. Approximately 13,000 members of the military were discharged under the Don’t Ask, Don’t Tell policy. On July 22, 2011, President Barack Obama, U.S. Secretary of Defense Leon Panetta, and Chairman of the Joint Chiefs of Staff Adm. Mike Mullen notified Congress that the military was ready to end DADT.

The end of Don’t Ask, Don’t Tell signifies new beginnings of a government that recognizes that discrimination based on sexual orientation and gender identity is outdated and wrong. Gay, lesbian, and bisexual service members previously discharged under DADT now have the opportunity to re-enlist. The repeal of DADT provides a significant opportunity for those in the military to be themselves and come out. The brave men and women currently serving in the military now have the freedom to be honest about who they are and about who they love. The repeal of the policy also signifies a willingness of broader society to accept gays, lesbians, and bisexuals. The repeal of DADT will hopefully provide momentum to the equal rights movement for the LGBTQ community.

In part, the government decided to repeal DADT to head off the ruling by the Central District Court of California in the Log Cabin Republicans case. In that case, a gay rights group sued the Pentagon for discriminating against gay and lesbian service members. The District Court agreed that the Pentagon was discriminating and ruled DADT unconstitutional. The court held that the government’s policy of barring lesbian, gay, and bisexual people from serving openly in the military violates the Constitution. The government appealed this decision to the Ninth Circuit. On September 30th, the Ninth Circuit ruled that the Log Cabin Republicans case was now moot because the challenged statute is repealed. The court rejected the Log Cabin Republicans’ argument that dismissing the case as moot would do nothing to deter Congress from reenacting a similar ban.

2. Defense of Marriage Act
On September 21, 1996, DOMA was signed into law by President Bill Clinton. DOMA provides that the federal government defines marriage as a legal union between one man and one woman. On February 23, 2011, Attorney General Eric Holder released a memo regarding two pending lawsuits challenging DOMA that said that President Obama thought that classifications based on sexual orientation should be subject to a heightened scrutiny, and therefore DOMA should not be enforced by the Department of Justice. The First Circuit Court of Appeals will hear a case regarding the constitutionality of DOMA in January or February of 2012, so the Supreme Court will here the case next term.

On March 4, 2011, Boehner announced that he would look into options to defend DOMA in place of the Department of Justice. On April 18, 2011l, House leaders announced that they selected private council to defend the constitutionality of DOMA in certain cases.

On March 16, 2011, Congressman Jerrold Nadler and Senator Dianne Feinstein introduced the Respect for Marriage Act. The bill would repeal DOMA. The Respect for Marriage Act would leave each state to decide whether to recognize marriages of same sex couples from other states but would require that the federal government and all state governments treat all married couples equally.

3. Proposition 8 – Federal Case of Perry v. Schwarzenegger
In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California, challenging California’s Proposition 8, which amended the California Constitution to prohibit marriage by same-sex couples. The lawsuit argues that Proposition 8 violates the US Constitution’s guarantee of due process and equal protection of the laws. Ted Olson and David Bois, men who sat as opposing counsel on the Bush v. Gore case that resolved the 2000 election, represent the plaintiffs. After a three-week trial that took place in January 2010, Judge Vaughn Walker ruled on August 4, 2010, that Proposition 8 violates the US Constitution’s guarantee of due process and equal protection of the laws.

Proposition 8’s supporters appealed the case to the US Court of Appeals for the Ninth Circuit. The Ninth Circuit agreed to put on hold Judge Vaughn Walker’s ruling, pending the appeal. The Ninth Circuit heard oral arguments on December 6, 2010 regarding the issue of whether the proponents of Proposition 8 have legal standing to defend the case (i.e. whether they have the legal right to appeal the case). On January 4, 2011, the Ninth Circuit asked the California Supreme Court to clarify whether California law gives ballot initiative sponsors the power to override the litigation decisions of the Attorney General and the Governor. On September 6, 2011, the California Supreme Court heard oral arguments regarding the standing issue. The judges’ questions indicate that the justices are leaning toward giving the proponents standing. The court has 90 days from the hearing to decide on the standing issue. Until the decision is made, the Ninth Circuit litigation is in a holding pattern due to the certification of a standing-related question to the California Supreme Court. It is unlikely that marriage equality will hit the Supreme Court anytime soon.

The importance of ordering in front of the Supreme Court
The ordering of the Proposition 8 and DOMA cases as they appear in front of the Supreme Court is important. If DOMA is overturned, it will be up to each state to decide and respect marriage equality because it will no longer be under federal oversight. If Proposition 8 is overturned, then marriage equality will essentially be imposed on all states. An imposition on all of the states at once would be a much quicker and larger step than. While I would love to see a sweeping decision of marriage equality being imposed on all of the states, I believe that it is a better political decision to have DOMA overturned prior to Proposition 8. Given the current climate of the Supreme Court of the United States, it is more likely that a decision on the Proposition 8 federal case could potentially lead to negative implications for the queer community. Therefore, at the moment, I would prefer an overturning of DOMA first.

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