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Golden Oldies: Liveblogging Closing Arguments: Part V

Out of all the live-blogging threads for the District Court hearing, this was the one most requested.

We at P8TT are taking Christmas through New Year’s off. Golden Oldies you requested will run in the place of regular posts. Regularly scheduled programming will resume on January 3rd–Adam Bink

By Rick Jacobs

Fresh thread time. More of Judge Walker trying to get Cooper to make a legitimate argument.

Cooper: To come back to the immutability case, the 9th circuit said, “sexual orientation is not immutable.” Against the Supreme Court cases, we know of no case that sexual orientation meets heightened scrutiny. The characteristics of immutability simply do not apply to sexual orientation. Behavioral, attraction and self-identity are the three definitions that the plaintiff’s experts used and depending upon which you use, a different group falls into that, so the definition is not clear. The plaintiffs made clear that sexual orientation does change over time, especially in women. Peplau commented on the “astonishing elasticity” of women, whose sexual orientation changes many times over their lifetimes. Some 2/3 of women who identify as homo have changed their orientation at least once and 1/3 more than once over their lifetime.

C: Goes to Supreme Court question of immutability. Justice Ginsberg says, “Immutability is tightly cabined. Goes solely to accident of birth.” Heightened scrutiny goes to race, gender, illegitimacy, all accidents of birth. Ginsberg says, “Doesn’t say something can’t be changed.”

Judge: Does this have to do with national orientation?

C: Yes.

J: Sometimes of the year everyone is Irish. (Laughter). People may choose via an ancestor to have a national origin. These questions of immutability are not key.

C: Well, we then look at political powerlessness. We submit that gays and lesbians are not politically powerless as Dr. Segura says. Clearly in the Cleveland case in regard to mentally disabled, does the group have the ability to attract the attention of the lawmakers? 20 years ago in “high tech gays?” the court ruled that gays and lesbians can attract the attention of legislators. As Dr. Segura testified, since that time there has been a sea change.

J: Isn’t that the most important factor, the historical context? Women are hardly politically powerless, yet a law protects them, laws that single them out subject to strict scrutiny. African Americans have considerable power and yet a law that singles them out is subject to strict scrutiny. Isn’t the historical context what makes the point?

C: It’s an interesting question. Here’s a group whose political power has changed so dramatically (women). In 1970 and 1973 when the court had before it the political power of the group (women) needed extraordinary protection from a majoritarian electorate so they needed protection. At that time, only 2% of the offices held by them but 50% of the population. That’s not the case with gays and lesbians in California.

J: The DOMA Statute that has been mentioned, Prop. 8, exclusion of gays and lesbians from military for a long period of time, all indicia of discrimination?

[UPDATE 3:00]

J: P8, these other props in other states, the exclusion of gays and lesbians from military service – aren’t those all indicia of a long history of discrimination?

C: We have never disputed that gays and lesbians have been the victims of a long and shameful history of discrimination. Thankfully, the situation today in 2010 is not what it was in the past. The fact of a history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The question of political powerlessness was very different 20 years ago, but the 9th Circuit nonetheless believed that gays and lesbians could attract the attention of the lawmakers; thus, it follows that it must be true today.

Even though mental disability is an immutable characteristic, the disabled could not qualify for heightened scrutiny because the court found that they had political power (could attract the attention of lawmakers), sure they had to rely on allies to create that political power. If the mentally disabled weren’t politically powerless, I would submit that gays and lesbians are definitely not powerless. I submit that Court’s that have decided against heightened scrutiny have been correct.

Long pause….

j: Why should Mr. Blankenhorn’s testimony qualify as expert testimony. Does he meet the standards?

C: I submit that he does. I don’t have anything to add to the submission we made earlier. Under the 9th circuit standard of the qualification of an expert, he is amply qualified. His professional life for 20 years have been devoted to the study of marriage – the potential parenting structures, the potential for harm to marriage due to a variety of social phenomena, including same-sex marriage, he’s written books that have been received with respect by recognized experts.

J: Were they peer-reviewed?

C: No.

J: Am I correct that the only peer-reviewed article of Blankenhorn was not on the subject of marriage?

C: Sir, as I stand here right now. I don’t know…don’t remember.

J: Fair enough.

C: I didn’t come here prepared to argue that particularly. May I request a 5 min break?

J: Why don’t we take 10 minutes….back at 3:10.

[UPDATE 3:27] from Rick

(Here’s a bit of commentary and some color from the break while Arisha does the hard work.)

Bruce Cohen, the Academy Award-winning producer and key figure behind this case, said to me,” Can you believe that they are pointing to the one court ruling banning gays and lesbians from adopting (Florida) as their standard?” As Bruce said, there are only two states that ban adoption by gays and lesbians—Florida and Arkansas. Yet Mr. Cooper is saying Judge Walker should refer to that ruling for guidance here.

Kris Perry introduced me to her two wonderful, poised teenage sons. I also had the honor of meeting Kris’s mother. Of course ___ Steer was right there, wondering with all of us what Mr. Cooper is really filibustering about. Can you imagine being the subject of this case and having your kids and your mom sitting there with you throughout all of this? Imagine these young fellows, who have such wonderful, loving, caring parents, hearing a high-powered, gray-haired lawyer pontificating about how horrid lesbian mothers must be? I really can’t. It’s not removed at that point.

One distinguished lawyer (not on the legal team) said, “The only thing he has is the strict scrutiny test which has never before been applied to marriage equality.” He went on to say, “What he said about Loving is bullshit. The only reason society had to prevent black and white people from marrying was procreation. Society did not want mixed-race kids.” That’s right. Society did not want Barack Obama to be born.

Cooper has surrendered, really, on all of the other issues. He’s trying to say immutability is not assured, but the judge pointed out that that does not really matter here. And even though the judge keeps bringing this back to marriage as a right vs. sexual orientation, he keeps trying to say it’s about sexual orientation because that is his canard.

Short notes: Maggie has her shoes on. Lance Black is watching intently, having not been absent for a second of this. And there to my left is the (oxymoronic) Protect Marriage gang that sued us in January for having a logo that they say is indistinguishable from theirs even though ours has two women with two children instead of a man and a woman. That’s the point of the whole thing. There’s no difference. It’s about the right to love.

[UPDATE 3:33]

C: The US Supreme Court in Crawford vs. Bd. Of Education in 1982 upheld a California constitutional amendment that reduced the remedial tools given to the courts in the school segregation area. In that case the court rejected the contention that once a state chooses to do more than the 14th Amendment requires that the state could not return the “lower” federal standard.

J: What do we make of that in the context of this case? What baring does that have?

C: The California Supreme Court’s interpretation that we believe goes beyond the 14A, was something that the people of the state were empowered to reverse. The people of California are the ultimate appellate tribunal of the California Supreme Court. The Court’s decision was no more final in the state of California than the Appellate decision that upheld Prop 8. It was reviewed by the ultimate, judicial tribunal and the judgment of the Supreme Court in Crawford is on point here.

C: I also want to address whether there is a legit basis for California citizens to be concerned that redefining marriage to include same-sex couples, does not show concern for the potential harm to the institution of marriage or show respect for the role that marriage is supposed to play (procreation, again). Redefining the institution will change the institution. Blakenhorn, our expert, said if you changed the definition of a thing, it’s hard to imagine how it would have no impact on “the thing.” Others have acknowledged that change will result. [He quotes a few “experts” who believe gays marrying will change the institution.] Redefining will divorce the institution of marriage from it’s core procreative purpose. It is not possible to predict with certainty what that change will beget. It seems undeniable that change as profound as this one, would have some consequences. The plaintiffs think that the consequences will be positive; we respect that point of view, but it’s not something that they can possibly prove – and their own expert (quoting Cott now) agrees that we can’t predict. Andrew Churling, a sociologist and equal marriage supporter, also states that “predicting the future of marriage is risky business.” He cites as example the fact that no sociologist forecasted the baby boom during the Great Depression; no sociologist predicted the rise of co-habitation.

Let me say 3 words that I haven’t said that often. “I don’t know.” Jokingly, I wish I could have those words back. Because usually whatever your question is, “I damn sure know.” Courtroom laughs.

J: What about Blakenhorn’s testimony about the negative outcomes that will result if gays can marry?

C: Blakenhorn was giving voice to sentiment that the threat of harm to vital social institution is too daunting to run the risks of gratifying what would otherwise favor the advent of same-sex marriage. There are many who went to the polling place with that sentiment – that’s my speculation. There are millions of Americans who believe in equality for gays and lesbians, but draw the line at marriage. Their hearts are pure – as pure as the plaintiffs – but they still believe that this is profound…could be profound. It could portend some social consequences that would not be positive and that reality

C: No one can know what tomorrow will bring. If there is a legitimate and rational basis to be concerned about that, couldn’t be more rational for people of California to say wait. We want to see what happens in Mass. and here. Perhaps Mr. Olson and his client’s whose sentiments are powerful (he’s speaking very haltingly) will be able to convince their fellow Californians they are right.

J: A disability has been put on marriage. Do you not have to show that there is need, that it’s enough to impose on some citizens a restriction from which others do not suffer? Is it enough to say “I don’t know?”

C: Yes. In looking at what society’s interests are and interests in regulating and caring and about marriage, if there is no basis for drawing a distinction from one to another, the distinction can’t stand. But if there is s distinction, it must stand. It’s been our position from the outset that we do not have to prove that exclusion of gays and lesbians from marriage is a problem; we only have to prove that inclusion of those people would erode marriage.

J: Would you wrap up?

C: Yes. (Pause) The California court (missed which one) goes to the heart of the matter. It is the proper role of the legislature to set priorities and make difficult and imperfect decisions and approaching problems incrementally.” That process is at work in this state and the county. As the court considers this, there is a debate about the morals, the practicalities and the wisdom that really goes to the nature of our culture. The constitution should allow that debate to go forward among the people. Thank you.

J: Thank you Mr, Cooper.

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25 Comments December 27, 2010

Live from the Senate Armed Services Committee: Don’t Ask, Don’t Tell hearing

By Adam Bink

I’m on Capitol Hill in the hearing room, where I’ll be live-blogging the Senate Armed Services Committee hearing on the Pentagon’s Comprehensive Working Group Report and consideration of repealing Don’t Ask, Don’t Tell. New updates will scroll from the top.

12:50: Sen. Levin thanks witnesses, panel, and announces that the hearing stands adjourned. This will conclude updates. I’ll have commentary later today.

12:45: McCain complains again about Wikileaks. Mullen agrees. McCain inquires about who will be held responsible and how. Mullen responds that it’s out of his lane, but agrees people should be held responsible. McCain: Do you support some kind of congressional or legislative action to make sure this doesn’t happen again? Mullen replies that we should do all we can as a country to make sure this doesn’t happen again. Johnson criticizes Wikileaks at length. Levin chimes in to concur.

12:37: Sen. Brown discusses how he never asked whether veterans who were injured, deceased were straight or gay. Asks Johnson whether service members have ever come out to him to get out of the military. Johnson said yes- in the Air Force, there was a gay man who came out. We separated him, then asked for our money back. Brown reiterates Gates’ comments about how service members can’t just get out of the military should they want to leave b/c of DADT repeal. Asks what the timing is on court cases. Johnson replies that LCR appeal is on expedited track.

12:30: Sen. Lieberman asks about margin of error. Johnson responds that it is less than 1%, far lower than any normal survey. Lieberman, Levin, McCain, and Scott Brown only Senators left present.

12:23: Hearing winding down. Sen. McCain finishes up by quoting Colin Powell’s comments in 1993. Says he is “taken aback” that we won’t have a referendum of men and women in the military, cites 28% statistic. Talks about how leaders should consult subordinates, though that doesn’t mean dictated by views of subordinates. Mullen notes what the report did ask and takes good stock of where they are. Reiterates how it would be an “incredibly bad precedent” to ask them to vote. McCain argues it’s asking their views, not voting. Mullen argues we’ve gotten their views in great part of this survey.

12:21: Sen. Levin rebukes Sessions’ comment that we’re here because of a campaign promise Obama made. Levin says I’m here because of a law passed in 1993 that needs to be changed and because there are gays and lesbians serving and dying for our country and we should honor the service and patriotism of them. That’s what I’m here, not because of some campaign promise of President Obama. Very well put.

12:20: Bayh goes onto ask, isn’t it likely that there were gay Americans buried at Normandy, serving at Valley Forge, etc. Ham replies that would be a reasonable assumption.

12:16: Sen. Bayh asks if we can implement this change without imperiling our national security. Gates reassures him regarding such. Bayh notes that integration of armed forces enhanced our national security. Gates exits due to time constraints.

12:06: Sen. Graham asks Mullen what led to the change in his thinking. Mullen responds that the mismatch of values/integrity with thousands of men and women willing to die for their country and asking them to lie. Worries that it is corrosive over time and a disrespect to our institution. Graham asks why the Marines “think the way they do.” Notes the Marines Commandant is in a different place. Mullen: I’ve been around Marines. I think people at that age in the Marines are trying to figure themselves out. Asks Johnson et al to prepare a contingency plan should the gov’t lose in the Witt, LCR cases. Notes that he’s been in the military a long time and never hears people lamenting the policy. Asks what kind of response the witnesses would get if the only question was whether the policy was wrong and do they think it should be changed. Mullen says we don’t know and that question would never be asked. Graham chastises Democrats for moving forward on repealing statute before report.

12:02: Sen. Hagan: Reiterates support for moving ahead with repeal. Asks about re-enlistment process. Johnson responds that they’d need to meet usual requirements regarding age, weight, physical requirements, etc. Hagan asks if he believes they would. Johnson notes they’ve spoken to many who said they would. Hagan asks what steps will be taken to see that gay/lesbian service members would be treated equally and not as a special class receiving special treatment. Mullen: No plan at all to create special class. Our standards would be enforced exactly as they are today.

11:55: Udall makes extended comments on breadth and width of the study, how comprehensive the research into the law has been. Notes how this is not a “done deal” given certification. Asks about service chiefs’ involvement. Mullen agrees how critical they are, and notes that he incorporated their advice and input into his recommendations. Notes that all 6 of us, including the coast guard, agree that implementation plan is a very, very solid way ahead specifically, and they will also say that if the law changes, they will lead the way.

11:46: Sessions, in fine form, uses his time to make an extended speech: We’re here because the President made a political commitment during a campaign. Goes onto complain about Elena Kagan’s testimony on Harvard issue. Complains about “legal cloud” hanging over this issue. Argues that Johnson is biased as he was in favor of repeal before the report. Johnson: Discusses his recommendation of appeal in Witt (DADT) case in argument to defend his record. Sessions and Johnson debate over his bias and judicial record.

11:41: McCaskill goes onto discuss Truman’s integration in 1948 and how only a decade later did Congress begin to seriously look at the Civil Rights Act. Asks Johnson to compare the two time periods, then and today. Johnson: I was surprised, Senator, to find there were surveys of the military back then- 3 or 4 thousand surveyed. But the opposition to racial integration was much higher. By the time the military was mostly integrated, Montgomery buses were still not. Opposition was much higher to racial integration then than gay/lesbian integration today. McCaskill: Asks whether there will be a quota. Gates: No, people will be promoted by the same standards by which they are today.

11:38: McCaskill begins by criticizing rhetoric around this issue. Reminds Gates he was selected by GWB to lead DOD. Notes her own partisan tendencies, and assumed he wouldn’t be calling the balls and strikes. “I’ve watched you under President Bush, and I think you’ve called the balls and strikes.” Goes onto note he served two parties, two Presidents, and always stays focused. Very classy of her.

11:34: Sen. Wicker quotes Mullen quoting Obama regarding how he’s made his position clear. Discusses how he feels the President et al have “painted Congress into a corner on this.” Gates: The action is in the courts, and Congress. Not the President’s decision. I can’t think of a single example in history of doing a referendum of the armed forces on policy. Yet here we did. Wicker: If the service members are so accepting of this, what would have been the harm of giving that info to Congress? Gates: “I think doing a referendum of service members on a policy matter is a very dangerous path.” [Editor’s note: Funny, given that was mine and others’ same concern when it was announced in the first place.] Wicker: Do you intend to do your job to fully and zealously defend the gov’t in DADT litigation while this is going on? Johnson: I will defend the law, which is why I recommended we appeal the LCR and other cases. It is our obligation to defend the law as given to us by Congress. There is a trend taking place after the 2003 Lawrence decision that we all need to be mindful of.

11:26: Sen. Coons alley-oops, to use a basketball term, a question about the harm a court-imposed lifting of the DADT law would impose. Mullen and Gates emphasizes extreme damage by, to use their term, judicial fiat.

11:22: Sen. Chambliss acknowledges courage/valor of gay/lesbian service members. Asks Mullen when gay/lesbians served under command. Mullen: 1973, and also ten years later, then in mid and late 90s, early 2000’s, up thru 2004-05. Chambliss: What was the law in the early days? Mullen: In those times, when commands were all men, [gays] were not allowed to serve. If it was exposed, they were discharged. Chambliss: Did you discharge them personally? Mullen: Yes. Chambliss: Did you discharge everyone you know was gay/lesbian? Mullen: Every single one known to be gay/lesbian was discharged. Chambliss: Did that have an impact on morale of sailors serving under you? Mullen: Not noticeably. Chambliss: I want to quote from page 49, paragraph 2, part 6 [goes onto describe part of the report describing how a majority of those interviewed was oppose to repealed. Knowing that, does that change your view? Gates: When coming to all the responses by those motivated to express an opinion, because they were self-motivated by those who wanted to show up an offer an opinion, I was told that was anecdotally important, but not statistically significant. Chambliss: I am bothered by that, and by your [dismissive] response regarding 265K resigning from military. Gates: 1st, I didn’t say it wasn’t important. 2nd, very few people can leave immediately. 3rd, experience based on the surveys in other countries shows those numbers aren’t accurate. Chambliss: Do you believe the rest of the survey is correct? Gates: Well, I outlined the difference between statistical significance of responses, and anecdotal responses from those who submitted them.

11:15: Manchin asks about chaplain community. Johnson says we may lose some of them, but believes we have just as many who feels strongly that this is the right thing to do.

11:11: Sen. Manchin (in what may be his maiden committee hearing) asks about readiness and whether there will mandatory implementation, all-at-one-time. Gates: Review offers a good guideline for leadership training and so forth, but in terms of how those things are carried out, I would give great weight to the views of the service chiefs. Manchin: Asks about costs of implementation given debt/deficit. Gates: Minimal. “One part of the report that I disagree with, and that’s the idea of a new benefit for single members of the services who have a sig. other or a gay/lesbian partner, and it would be for both hetero/homosexual partners and for access to family planning and benefits. I think you would hear from the service chiefs from the service chiefs about this partly b/c of the cost and open-endedness of it, but also b/c we’re trying to deliver those services to married members, and concerns about diluting the quality of those services if we’re delivering to all single people with special people in their lives.”

11:06: Following a 5-minute recess, Sen. Thune asks Gates about the importance of views of service chiefs, and whether he would consider adding their signature to certification. Gates affirms their importance but says he would not. Goes on to mention, if not now, when? Notes how we will always be in a situation of being extremely busy around the world and, possibly, combat/war. My view on when I think I can certify certainly will depend heavily on the advice of the service chiefs and whether we have mitigated the concerns they have noted.

10:55: Webb asks Mullen re individual unit “integration”. Mullen responds that he would not sign certification until everything was to his satisfaction regarding, for example, all-male unit integration. Webb concludes by praising report again.

10:52: Sen. Webb begins by praising report for usefulness. Asks Gen. Ham whether we have any idea what % of U.S. military is gay/lesbian. Ham: We do, and it’s imprecise. Estimate is about the same as general population- somewhere in 2-3%. RAND’s assessment that gay men are lower, and lesbians higher, than in general population.

10:48: Collins continues by asking Mullen about opponents’ arguments about doing this in the middle of wartime. Notes Truman’s 1948 order to integrate was fully implemented during the Korean War. Mullen affirms. Collins: In fact, on page 83, it says that when personnel shortages of the Korean War necessitated integration, it was done. Mullen: We understand what it takes in combat better than we did back then by virtue of experience. We have changed dramatically as a military since 2001. I think it puts us in a capacity to do this now. We are better led than we have ever been. Making a change like this makes us better, it doesn’t make us worse.

10:46: Collins continues, Mr. Johnson, is it fair to conclude that the report does represent the views of the military? Mullen: It does. Collins: If there had been lots of people reporting negative reviews, you would have reported that, yes? Johnson: I would have had a professional obligation to report that.

10:44: Susan Collins, a potential cloture vote who voted aye in committee, begins by Ham, Johnson for report, and Mullen/Gates’ statements. Wants to go through some of the objection we’ve been hearing from anti-repeal advocates. Critics state our troops were not asked whether DADT should be repealed. I would point out our troops were not asked whether they should be deployed to Afghanistan/Iraq; they generally aren’t asked about policy decisions. However, given extensive feedback the authors did and that they received from tens/thousands of service members in town halls, e-mails, etc., the report, in fact, does convey a sense of what service members think about repealing the law even if a direct question was not included in the survey. I was struck by a special ops operator who said “we have a gay guy in the unit. He’s big, he’s mean, and he kills lots of bad guys. And no one cared that he was gay.”

10:42: Sen. Ben Nelson notes how important it is for service members to be able to tell the truth, both those serving openly and their heterosexual peers who didn’t turn them in. Mullen: I can’t square that circle. Nelson: Doesn’t the current system undermine values of integrity? Mullen: Yes, it does.

10:39: Sen. Scott Brown again reiterates attack on basis of 28% response rate. General Ham: 28% is well within normal response rate for DOD surveys… I’m comfortable the response rate overall was within norms. More importantly, each category that we analyzed had a statistically significant number of responses. Brown: Do you envision starting with certain units over others? Gates: I think the key, as report makes clear, is training both leadership and the entire force. That’s more than 2 million people. Whether we’d begin with one segment or not, we haven’t addressed that yet. My personal approach to this would be that until all the training has been completed, until the service chiefs are comfortable that risks to cohesion/effectiveness have been addressed to their satisfaction and to mine, I would not sign the certification. Brown: You will not certify until you feel the process can move forward w/o damage to safety, security of men and women serving, and that effectiveness to fight will not be jeopardized? Gates: Yes.

Editor’s note: Brown certainly sounds like a potential vote for cloture with his line of questioning, something a number of sources close to the vote count have told me is possible, but less likely than others like Collins, Voinovich.

10:29: Sen. Reed noted extended debate on the topic already. Not too much else to note.

10:26: Inhofe asks if certification process matters at all anymore given this report and testimony. Gates responds that it still matters to him and he will take service chiefs’ advice into account.

10:22: Oh happy day, Sen. Sessions is now present. Sen. Inhofe begins with comments to Mullen on statistics of opposition. Mullen notes that overwhelming majorities would support repeal. Inhofe notes that he believes 28% isn’t very much. Mullen: Actually, when you talk about 28%, of the 400K sent out to those in uniform and more to family members, that’s a remarkable result with statistical significance.

10:20: Lieberman emphasizes how standards of conduct (refers to “gayness”) won’t change in question to Mullen. Mullen affirms.

10:13: While Lieberman is on an extended soliloquy about values and comity, I’ll take a second to note that I think repeal advocates’ strategy here is very smart. Levin’s questions about service chiefs, given that it’s noted opposition among them. Gates, Mullen’s strategy of putting McCain in the position of acting too slowly and putting the military at risk should judicial rulings force their hand.

10:11: McCain to Gates: Very deeply concerned about Wikileaks. Have you held any individual responsible for Wikileaks? Disciplinary action? Gates: Our ability to go down that path are limited b/c we have criminal proceedings going down. Ultimately, not yet.

10:04: McCain to Ham: Is it your personal opinion that this law should be repealed? Ham: Yes. McCain to Gates: How are concerns about repeal exaggerated? Gates: I don’t recall using that term. I believe with proper time for prep, training, before deployments or after, if we are allowed to do this on our terms, I believe those concerns can be mitigated. Reiterates Mullen’s comments on the experiences of those who have served with openly gay and lesbian service members. McCain: I couldn’t disagree more. 12.6% of the overall military force said they’ll leave earlier than planned [if DADT is repealed]. Overall numbers- he estimates 265K troops to leave. You think that’s a good idea when we’re fighting two wars? Gates: Yes, and our military allies had large numbers who said they would leave, and in the end, those numbers were far smaller than what surveys indicated. While there are concerns you’ll probably hear tomorrow about special ops forces where there are limited numbers of people, I don’t think any of us think the numbers would be anything like what the survey suggests, based on experience. Also, they can’t just up and leave. They have enlistment contracts. It isn’t like they can just say, well, I’m outta here. And I believe their concerns can be mitigated.

10:01: Levin Q to Gates- you’ve urged us to be deliberate, but also to ask this month. How can you reconcile? Gates: I think the report needed to inform the legislative process, it’s now done so. It’s clear and straightforward. The recommendations are doable within the timeframe before the Congress adjourns. I believe, based on the report, that Congress is in a position to act b/c it now has this info in hand and frankly I don’t think it’s all that complicated to absorb.

9:59: Levin Q to Gates: “Would you consider our acting this month to be hasty?” Gates: “It certainly would be expeditious. As Sen. McCain said, this is a very important matter. My sense of urgency would not be as great were it not for what we went thru in Oct, Nov (editor’s note: referring to judicial rulings) which frankly were a difficult period when we were told the law was changed and couldn’t enforce it with no training whatsoever.”

9:55: Questions begin with Chairman Levin. Sens. Chambliss and Hagan have also now arrived. Levin asks Gates whether Mullen, Gates, Ham, Johnson have considered views of service chiefs before reaching their conclusion. He is smartly trying to reassure everyone that their views, while some may be hostile, have been accounted for. All affirm that they indeed have.

9:51: Sen. Levin mentions Gates must leave at 11:30, tells Senators they will have 5 minutes for questions. McCain complains. Levin assures him there will be several rounds of questions, and we need to accomodate everyone’s schedule. McCain complains, asks for more hearings. Gates agrees to stay until 12. Inhofe asks for 6 minutes instead of 5. Laughter. Levin smiles, agrees.

9:49: Johnson continues to strike fear of the courts into the hearts and minds of those listening. “From where I sit as the lawyer for DOD, the virtue of this legislation is that if passed, repeal of DADT will be done on our terms and our timetable on the advice of military leadership.” Also uses “judicial fiat” term that Gates uses.

9:47: Jeh Johnson is now speaking: “I want… to ask that the Congress not leave this in the hands of the courts. I have no doubts on the constitutionality or the outcome of the litigation but regardless of how you feel about DADT, or gays serving openly in the military, the fact that there is increased litigation in the courts on matters of gay rights is undeniable. Since 2003 (Lawrence v. Texas) the courts have become increasingly receptive to gay lights claims.”

He goes onto to discuss DOMA and DADT litigation and how he is concerned that we’ll have to repeal DADT not on the terms and timetable of the President, Congress and courts, but on the judicial branch.

9:45: General Ham (very short statement): “I was cognizant every day of this review that I would actually have to lead the changes presented in this report. If this law changes I and the leaders can do just that.”

9:43: Mulllen continues- “For more than 40 years I’ve made decisions that affected and even risked the lives of young men and women… don’t think for a moment that I haven’t considered the impact of the advice I give [on those lives].” General Ham is up next.

9:41: Brilliant Mullen quote regarding a Marine, often considered to be the most hostile to repeal: “As one Marine put it, if that’s what the President ordered, by God, we’re going to excel above and beyond the other armed services to make it happen.”

9:39: Mullen continues- “Let me be clear… nothing will change about our standards of conduct, nor the dignity, fairness and equality with which we treat our people… the military is a meritocracy with treatment based on what you do, not who you are… we may wear a different uniform but we are one… there is no gray area here. We treat each other with respect or we find another place to work.”

9:37: Mullen continues- “Some may want separate shower facilities… some may even quit the service. We’ll deal with that. But history tells us most will put aside personal proclivities for themselves and for each other… there’s a common bond against threat of the enemy… I believe the repeal of DADT will pass with less turbulence than some predict, not only because our young ones are more tolerant, but because they’ve got more important things to worry about.”

9:35: Admiral Mullen is speaking and is very short, blunt, and to the point. “What was my personal opinion is now my professional opinion. Unit cohesion will not suffer, families will not encourage their loved ones to leave the service. I don’t discount for a moment the results of the survey… whatever risk there is, it is thoroughly mitigated by the [recommendations] in this study. These are the things I know for a fact, these are the things the study tells us. Now let me tel you what I believe. Our troops are ready for this. Most are serving or have served alongside gays and lesbians.”

9:28: Gates continues- (c) this change imposed by judicial fiat would be the most dangerous possibility; therefore, I agree with Sen. McCain that change is for the Congress to decide; we need a process the carries the “imprimateur” of the Congress elected by the people; we cannot “roll the dice” that judicial change would go well (d) this is the second time that I have dealt with this issue, the 2nd being the CIA in 1992, and as director I ordered that openly gay applicants be treated like all over applicants. That was significantly different in circumstance and consequence than what we’re facing today. Views towards gays and lesbians are different today, and there is growing acceptance in society as a whole, and in uniformed ranks as a whole. I ask that all involved resist the lure of bringing our troops and families into the politics of this issue.

9:26: Sens. Wicker and Thune are now here.

9:24: Sec. Gates is now speaking. He is emphasizing (a) his job was only to discover how best to prepare the military for such a change, but nevertheless he thought it important to survey the military (b) A strong majority (more than 2/3) do not object to gays and lesbians serving openly in uniform; repeal of DADT, while potentially disruptive in the short term, would not be the wrenching change others had predicted.

9:22: McCain discusses how he’s concerned about the “rush to repeal” despite significant numbers of service members viewing it negatively. He continues, “As this debate continues, I hope people would put aside their political agendas.” Hah. “I’m not saying this law should never change, I am simply saying that it may be premature… without further consideration of this report and further study by Congress.” No word on which goalposts he will newly set up.

9:16: Sen. McCain: “This capable force of ours could repeal DADT if asked to… what I want to know is not can our Armed Forces repeal this law but whether they should. Unfortunately, that’s not the focus of this study… this is a question that must be answered by Congress with proper consideration of the issue… the DOD has had 10 months to complete this report. Together they contain over 1,000 pages of data and analysis. We received it 36 hours ago and are still carefully analyzing it. What I can saw now is that in addition to my concerns over what questions were not asked, I’m troubled by the fact that this report represents only 28% of the military force. I find that hard to view that as a fully representative sample set… what appears clear is that the survey and anecdotal data… do not lead to a firm conclusion.”

McCain continues to highlight the statistics he views as arguments against repeal, such as Marine surveys.

9:14: Sens. Brown, Burr, and LeMieux are now here.

9:07: Sen. Levin gaveled in the hearing to announce the topic and testimony and detailing how comprehensive the overview of the policy has been. So far, present are Sens. Levin, Manchin, Collins, McCaskill, Webb, Udall, Inhofe, Lieberman, Bill Nelson, Ben Nelson, and Reed.

9:04 AM: Senators are filing in along with Secretary Gates, Admiral Mullen, and Working Group Co-Chairs Jeh Johnson and General Carter Ham. The hearing appears set to begin in the next 10 minutes. LGBT allies have certainly filled out much of the room- to my left are GetEqual Managing Director Heather Cronk, to my right are HRC President Joe Solmonese and Legislative Counsel Ty Cobb. Code Pink is also here. The line was 25 people long when I arrived at 7:57 AM and the room is now packed.

151 Comments December 2, 2010

Live-blogging the DADT and Prop 8 hearings: Embarking on a third tour of duty with the Prop 8 Trial Tracker

Hey everyone, please welcome Adam Bink back to the Prop 8 Trial Tracker for his third tour of duty. He’ll be live-blogging the DADT hearings as well as the Prop 8 hearing on Monday, along with Rick Jacobs and Arisha Hatch, right here on the Prop 8 Trial Tracker. Just like old times! — Eden

By Adam Bink

Eden and the rest of the Courage team asked if I would come back to take the reins here on P8TT, and I’ll be starting tomorrow and running through Christmas Day.

As always, I’m excited to work with such a vibrant community, and I’m doing it because of the road we face ahead. We’re entering a critical few weeks in our movement for equality, with critical hearings and votes in the Senate coming up, and as you all know, the 9th Circuit hearing on Prop 8 coming up on Monday.

As such, Courage is expanding its team to bring you the best coverage possible, and so I’m back for a third tour of duty. If you’re new to P8TT, I managed coverage of the first and second National Organization for Marriage bus tours, which you can read about here. For some more background, my usual writing can be found at my home blog,

The third tour starts Thursday morning in, appropriately, the Senate Armed  Services Committee. I will be arriving around 8 AM EST with a large cuppa strong black tea, a charged laptop, and my cyber game face to bring you live-blog coverage all morning long of the critical Senate Armed Services Committee hearings on the Pentagon Comprehensive Working Group report released yesterday. Secretary Gates, Admiral Mullen, and the two co-chairs of the Working Group- Jeh Johnson and General Carter Ham- will be testifying. Carl Fredrickson John McCain will no doubt be in fine form. Susan Collins will do her usual poker face on which way she’ll go on the cloture vote. There might be protesters.

I couldn’t think of a better way to spend Thursday morning, or a better way to kick off a critical month of December for our movement. And on Monday, Rick Jacobs and Arisha Michelle Hatch will be live-blogging the 9th Circuit hearing while I manage external coverage here from DC.

The hearings start tomorrow at 9 AM EST. See you then here at P8TT.

40 Comments December 1, 2010

BREAKING: Senate Republicans refuse to vote on DADT repeal before tax cuts

by Andy Kelley

Senate Republicans have delivered a letter to Majority Leader Harry Reid stating that they will not allow a vote on any piece of legislation coming before the Senate, without an extension of the Bush tax cuts. This news comes as the Senate prepares further hearings on the National Defense Authorization Act, which contains language to repeal “Don’t Ask, Don’t Tell.”

As Metro Weekly reports, the letter from Senate Republicans states:

[W]e write to inform you that we will not agree to invoke cloture on the motion to proceed to any legislative item until the Senate has acted to fund the government and we have prevented the tax increase that is currently awaiting all American taxpayers…

With little time left in this Congressional session, legislative scheduling should be focused on these critical priorities. While there are other items that might ultimately be worthy of the Senate’s attention, we cannot agree to prioritize any matters above the critical issues of funding the government and preventing a job-killing tax hike.

Efforts to link the Bush tax cuts to the NDAA are the latest in a thinly veiled series of efforts by GOP Republicans to bring the lame-duck Senate to a halt.

But this time, this obstructionism could spell disastrous results for the repeal of DADT. As the Washington Blade notes:

The letter is signed by all 42 members of the Republican caucus, including those who are seen as swing votes on moving forward with “Don’t Ask, Don’t Tell,” such as Sens. Susan Collins (R-Maine), Olympia Snowe (R-Maine) and Scott Brown (R-Mass.). Newly seated Sen. Mark Kirk (R-Ill.) is also among the signers.

Aubrey Sarvis, Executive Director of the Servicemembers Legal Defense Network responded to this news directly stating:

The Republican caucus that has expressed strong support for a vote on extending the Bush era tax cuts should be as equally unified in support of a vote in the lame-duck session on the nation’s defense bill, the very bill which provides for our security and the well being of service members who defend us every day,” he said in the statement. “It’s past time for those Republican senators who say they support a vote on the defense bill and repeal to show it with a vote, and not by words alone…

After twenty-three months of excuses and delays in this Congress, it’s time to vote. If Republicans or Democrats use ‘procedure’ and the tax bill as excuses for not voting that is the very same as voting no. A no vote when Reid calls the repeal vote will not only put senators on the wrong side of history, it will also put them in opposition to the overwhelming majority of those who serve in our armed forces and the most senior members of our military.

I for one, agree with Aubrey. The time for the Senate to act has come, and we cannot afford their newest distraction.

We will continue to bring you updates here as this story develops.

117 Comments December 1, 2010

Discharged Marine Justin Elzie: What to look for to repeal DADT

Cross-posted at LGBTPOV.

By Karen Ocamb

I met former Sgt. Justin Elzie in 1993 when he was the first Marine discharged under Don’t Ask, Don’t Tell as a result of coming out on ABC News to end the original gay ban on open service in the military. He was later re-instated after a legal challenge and served for four years as an openly gay Marine. Elzie was finally discharged in 1997. He’s written about it in his new autobiography, “Playing By The Rules” (available through Rebel Satori Press or by ordering it on
 For the past two years, Elzie’s been working on repealing DADT – including an op-ed he penned last week with former Army Capt. Tanya Domi for CNN. He’s now on the Hill lobbying for repeal and planning to attend the Senate Armed Services hearings on the Pentagon Working Group’s report on Thursday and Friday.

I asked Elzie via email about his opinion of Marine Corps Commandant General Amos, who wants to keep DADT, and what we should be looking for with the release of the Pentagon’s study.

Change is coming,” Elzie said, noting that the study reports that 70 percent of servicemembers “don’t mind serving” with openly gay servicemembers. Among Marines, number is 60 percent. Elzie said:

“So a majority of Marines don’t mind serving with openly gay servicemembers. I would hope that with this inevitable change coming that the Commandant of the Marine Corps would get out front and lead the Marine Corps, instead of embarrassing the Marine Corps with his obstinance. It is only hurting the Marines and not preparing them for the eventual changes that are coming. It is important that the Marine Corps live up to its ideals of promoting a diverse quality force that it says is essential to progress and mission accomplishment. It is hypocritical for an organization to claim to fight for the freedoms of all Americans while at the same time discriminating against a whole group of Americans already in its ranks. General Amos needs to lead the Marines and their culture forward in the right direction, not backwards.”

As to who to watch in the next few days as the Senate considers repeal, Elzie said:

Former Marine Sgt. Justin Elzie

“I don’t think [Republican Sens.] John McCain or Lindsey Graham will accept the findings. Let me first say, really, when you look at the important players this week, we know where John McCain and Secretary Gates are at on either end of the spectrum. So I don’t think what either of them says is so important verse watching those players in the middle. That said, I think John McCain will say that the report didn’t really answer whether unit cohesion or unit morale would be negatively affected.

As far as the other Republican Senators like Susan Collins or Olympia Snowe of Maine, Scott Brown of Massachusetts, Lisa Murkowski of Alaska, and so forth, I think that watching what they say will be key.

I think over the next few days, the key people to listen to, as far as reactions to the report and the hearings will be, in order of importance:

1. The four service chiefs of the services, Navy, Army, Air Force and especially the Marines. If anything, their comments about the report’s findings that they have prepared and will share at the hearings will be key since they have all along been wanting to drag their heels – with the Marine Corp commandant not wanting to do repeal at all. I think McCain, who really isn’t important in the scheme of things, will try to amplify any negativity from the findings. But I don’t think he has sway over the moderate Republicans on this.

2. Republican Senators (other than McCain). These folks’ responses to the study over the next several days will give us a clue as to which way they will lean and whether we truly have the 60 votes for cloture [which will move the bill to the floor for debate] in the Senate on the Defense Authorization Bill [in which DADT repeal is included].

3. Senator Reid. How he decides to bring up the National Defense Authorization Bill will be key. If he brings it up with an open and fair amendment process – then that leaves no excuse for the moderate Republican Senators to blame voting against repeal on the process [as they did in September].

Everyone else comes down on either side. But it is the people who are in the middle and have dragged their feet already that will be key as to how things end up by the end of the week. The President will be pressured to play a role – but I think, as we have seen in the past, he will not put a lot of political capital in this, like making numerous phone calls or doing press conferences.

You can bet that by this weekend we will have a much better idea where everything stands with repeal and the political pundits will be placing bets on the vote on this weekend’s talk shows. Stay tuned.”

43 Comments December 1, 2010

Pentagon DADT study released: Discussing some of the key findings

Cross posted from Open Left

By Adam Bink

This afternoon, the Pentagon Comprehensive Working Group report was released, and I’m coming up for air after reading through some key graphs. The report surveyed “400,000 active duty and reserve component Service members with an extensive and professionally-developed survey, which prompted 115,052 responses-one of the largest surveys in the history of the U.S. military,” (which includes self-identied gay or lesbian servicemembers), along with 150,000 spouses and other family members, foreign allies, members of Congress, services chiefs, service academy superintendents, and other personnel. Which makes it hard to cast as some minority report.

I think these paragraphs of the report indeed states it best:

The results of the survey are best represented by the answers to three questions:

  • When asked about how having a Service member in their immediate unit who said he or she is gay would affect the unit’s ability to “work together to get the job done,” 70% of Service members predicted it would have a positive, mixed, or no effect.
  • When asked “in your career, have you ever worked in a unit with a co-worker that you believed to be homosexual,” 69% of Service members reported that they had.
  • When asked about the actual experience of serving in a unit with a co-worker who they believed was gay or lesbian, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor.”

The latter point is a statistic which is 89% for those in Army combat units and 84% for those in Marine combat units. Additionally, 74% of spouses of military service-members say repeal of DADT would have no impact on their view of whether their husbands or wives should continue to serve.

Other key graphs I think are important to highlight (bolding mine where seen):

The reality is that there are gay men and lesbians already serving in today’s U.S. military, and most Service members recognize this… Anecdotally, we also heard a number of Service members tell us about a leader, co-worker, or fellow Service member they greatly liked, trusted, or admired, who they later learned was gay; and how once that person’s sexual orientation was revealed to them, it made little or no difference to the relationship. Both the survey results and our own engagement of the force convinced us that when Service members had the actual experience of serving with someone they believe to be gay, in general unit performance was not affected negatively by this added dimension.

In communications with gay and lesbian current and former Service members, we repeatedly heard a patriotic desire to serve and defend the Nation, subject to the same rules as

everyone else. In the words of one gay Service member, repeal would simply “take a knife out of my back….You have no idea what it is like to have to serve in silence.” Most said they did not

desire special treatment, to use the military for social experimentation, or to advance a social agenda. Some of those separated under Don’t Ask, Don’t Tell would welcome the opportunity to rejoin the military if permitted. From them, we heard expressed many of the same values that we heard over and over again from Service members at large-love of country, honor, respect, integrity, and service over self. We simply cannot square the reality of these people with the perceptions about “open” service.

Along the way to gender integration, many of our Nation’s military leaders predicted dire consequences for unit cohesion and military effectiveness if women were allowed to serve in large numbers. As with racial integration, this experience has not always been smooth. But, the consensus is the same: the introduction and integration of women into the force has made our military stronger.

The general lesson we take from these transformational experiences in history is that in matters of personnel change within the military, predictions and surveys tend to overestimate negative consequences, and underestimate the U.S. military’s ability to adapt and incorporate within its ranks the diversity that is reflective of American society at large.

This one is particularly interesting:

We support the pre-existing proposals to repeal Article 125 of the Uniform Code of Military Justice and remove private consensual sodomy between adults as a criminal offense. This change in law is warranted irrespective of whether Don’t Ask, Don’t Tell is repealed, to resolve any constitutional concerns about the provision in light of Lawrence v. Texas and United States v. Marcum. We also support revising offenses involving sexual conduct or inappropriate relationships to ensure sexual orientation neutral application, consistent with the recommendations of this report. For example, the offense of adultery defined in the Manual for Courts-Martial should be revised to apply equally to heterosexual and homosexual sex that is engaged in by or with a married person

If you’re wondering, given the size of the poll, the margin of error for the service member poll is +/- less than 1%, and “similar” for the spouse survey. So it’s hard to cast the numbers as wildly inaccurate.

The Working Group concluded that “Based on all we saw and heard, our assessment is that, when coupled with the prompt implementation of the recommendations we offer below, the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low.”

In a press conference announcing the release, Secretary Gates commented:

Now that we have completed this review, I strongly urge the Senate to pass this legislation and send it to the president for signature before the end of this year. It is only a matter of time before the federal courts are drawn once more into the fray, with the very real possibility that this change would be imposed immediately by judicial fiat – by far the most disruptive and damaging scenario I can imagine, and the one most hazardous to military morale, readiness and battlefield performance.

While “judicial fiat” is not the language I would have chosen, Gates is using the threat of a court ruling as an argument for Congress to enact repeal “the right way”. It’s an interesting case that may encourage Senators to support repeal.

Jeh Johnson, a co-chair of the Working Group, also spoke, and noted that the resistance to repeal “is driven by misperceptions and stereotypes.”

The full report can be found here. I will continue updating this post as I keep reading, and let you know of other developments.

And as I wrote this morning, now is a more critical time than ever to call swing Senators and ask friends/family/colleagues to also do so, using the Pentagon report as a tool. A list of swing votes can be found here, and the number is 202-224-3121. We still have work to do.

Updated: An interesting section on page 122 that I think gets at much of the concern and stereotypes not just in the military, but in greater society with respect to gays and lesbians becoming teachers, or the passage of ENDA- and batted down by the Pentagon.

In listening to Service members we found a perceptions gap- between the perception of the gay Service member that people know and work with, and the perception of the stereotypical gay individual that people do not know and have never worked with. When Service members talk about a unit member they believe to be gay or lesbian, their assessment of that individual was based on a complete picture and actual experience, including the Service member’s technical and tactical capabilities and other characteristics that contribute to his or her overall effectiveness as a member of the military and as a colleague.

By contrast, when asked about serving with the imagined gay Service member who is “open” about his or her sexual orientation, that feature becomes the predominant if not sole characteristic of the individual, and stereotypes fill in the rest of the picture. Stereotypes motivated many of the comments we heard. The most prevalent concern expressed is that gay men will behave in a stereotypically effeminate manner, while lesbian women are stereotypically painted in “masculine” terms. We heard widespread perceptions that, if permitted to be open and honest about their sexual orientation, gay Service members would behave as sexual predators and make unwelcome sexual advances on heterosexuals, gay men would adopt feminine behavior and dress, there would be open and notorious displays of affection in the military environment between same-sex couples, and that repeal would lead to an overall erosion of unit cohesion, morale, and good order and discipline.  Based on our review, however, we conclude that these concerns are exaggerated and not consistent with the reported experiences of many Service members.

The perceptions gap we note here is also reflected in the survey data. The data reveals that Service members who are currently serving with someone they believe to be gay or lesbian are less likely to perceive a negative impact of repeal on the key elements of unit task and social cohesion, and unit effectiveness. Conversely, those who have believe they have never served with someone who is gay or lesbian are more likely to perceive a negative impact. Likewise, of Service members who believe they have in their career served in a unit with a co-worker who is gay or lesbian, 92% stated that the unit’s “ability to work together” was “very good,” “good,” or “neither good nor poor.”

Thus, our view is that the negative perceptions and predictions of serving alongside a gay Service member are refuted by the considerable track record of actual experiences where Service members did exactly that.

Update 2: This section on pages 126-27 make up especially critical talking points against one of the lead anti-repeal arguments, that being “now is not the time”:

Change During a Time of War

Our assessment also took account of the fact that the Nation is at war on several fronts, and for a period of over nine years, the U.S. military has been fully engaged, and has faced the stress and demands of frequent and lengthy deployments. When it comes to a repeal of Don’t Ask, Don’t Tell, many ask: why now?

The question “why now?” is not for us, but for the President, the Secretary of Defense, and Congress, informed by the military advice of the Joint Chiefs of Staff. The question we answer here is “can we now?” We considered the question carefully and conclude that repeal can be implemented now, provided it is done in a manner that minimizes the burden on leaders in deployed areas. Our recommended implementation plan does just that, and it is discussed more fully in the accompanying support plan for implementation.

The primary concern is for the added requirement that will be created by the training and education associated with repeal. We are cognizant of these concerns, but note that during this period, the Services have undertaken education and training in deployed areas on a number of important personnel matters. These education and training initiatives have included increased emphasis on sexual assault prevention and response, suicide prevention, and training to detect indications of behavioral health problems.

The conduct of these programs in deployed areas indicates that training and education associated with a repeal of Don’t Ask, Don’t Tell can be accommodated. We assess this to be the case, in large part because our recommendations in this report involve a minimalist approach to changes in policies, plus education and training that reiterates existing policies in a sexual orientation-neutral manner.

It is also the case that the results of the survey indicate, though this is a time of war, a solid majority of Service members believe that repeal will have positive, mixed, or no effect. Most of those surveyed joined our military after September 11, 2001, and have known nothing but a military at war.

We are also informed by past experience. In the late 1940s and early 1950s, in the period immediately following World War II, during the Korean War and the beginning of the Cold War, our military took on the task of racial integration, in advance of the rest of society. And, at the time, the change implicated far larger numbers of Service members: African Americans in the Army then numbered 700,000 of a total force of over 8 million, and the opposition to racial integration was far greater than today’s resistance to repeal of Don’t Ask, Don’t Tell. The process of racial integration was slow and presented many challenges, but history shows that there were no differences in combat effectiveness in the Korean War between integrated and all-white segregated units.


The Pentagon Study in its entirety:

[scribd id=44421654 key=key-2auyhqp1qclrywcylaeu mode=list]

180 Comments November 30, 2010

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