Another Civil Rights Champion Dies: Paula Ettelbrick, 56

Another civil rights champion has died. Paula Ettelbrick, a lawyer and activist, succumbed to cancer this morning.

Although Paula's work focused primarily on LGBT issues, she viewed justice in very broad terms. As a result, she championed reforms related to gender, poverty, sexuality, race and many other concerns.

I had the pleasure to know Paula professionally and personally. Her work as an attorney and scholar inspired and taught me. The world has lost a great woman.

Paula's death occurred in the same week that legendary civil rights veterans Derrick Bell and Fred Shuttlesworth died. I hope that people who value justice will study the work of these individuals and become inspired by their tireless efforts. Social change is not an easy project. It requires courage, commitment and honesty. These three champions of equality prove that point.

Urvashi Vaid has a great tribute, which you can find here: Paula Ettelbrick and Feminist Leadership.

Michigan Assistant Attorney General Fired For Stalking Gay College Student

Andrew Shirvell, a Michigan assistant state attorney general, has lost his job. Shirvell made national headlines after he started targeting University of Michigan student body president Chris Armstrong. Armstrong is openly gay.

Believing that Armstrong was pursuing a "radical homosexual agenda," Shirvell stalked the student at his residence and at the University of Michigan. State officials conducted an investigation and concluded that Shirvell's conduct made him unfit for his position. According to a report of the investigation, Shirvell engaged in several inappropriate actions, including, that he:

Showed up at Armstrong's home three separate times, including once at 1:30 a.m. . .

"Engaged in behavior that, while not perhaps sufficient to charge criminal stalking, was harassing, uninvited and showed a pattern that was in the everyday sense, stalking."

Harassed Armstrong's friends as they were socializing in Ann Arbor.

Called Speaker Nancy Pelosi's office, Armstrong's employer, in an attempt to "slander Armstrong and ultimately attempting to cause Pelosi to fire Armstrong.

Attempted to "out" Armstrong's friends as homosexual — several of whom aren't gay (boldface added).

Employees and Free Speech

Mike Cox, the Michigan attorney general, carefully distinguished Shirvell's conduct from activities protected by the First Amendment. As a public employee, Shirvell's speech is entitled to constitutional protection. Cox, however, rightfully concluded that Shirvell's conduct went far beyond protected activities for public employees. Furthermore, Shirvell apparently lied to investigators -- which clearly does not implicate a constitutional right.

Recently, Dissenting Justice has commented on several clashes between speech and workplace decorum. I believe that many recent discharges or suspensions of individuals -- such as Shirley Sherrod, Keith Olbermann, and Juan Williams -- reflect a desire to avoid controversy by any means necessary. I do not agree with this kneejerk desire to sanitize speech.

The Shirvell case, however, differs from the others in many important respects. Shirvell, as a state attorney, was responsible for enforcing state antidiscrimination law and for executing his duties without prejudice. Also, as the report concludes, Shirvell engaged in harassing and potentially slanderous conduct. Furthermore, Shirvell lied to state officials who investigated his conduct. Finally, Shirvell used state time and resources to stalk and harass college students. His pattern of behavior raises serious questions about his professional and mental competence. Accordingly, this is one case in which a discharge was absolutely warranted.

DADT Emergency Stay: Analyzing the Law and Politics

The US Court of Appeals for the Ninth Circuit has issued an "emergency stay" of a US District Court ruling that enjoins enforcement of Don't Ask, Don't Tell. The stay is only temporary, and it maintains the status quo until the court can fully review the issues raised by the government's request.

Legal Issues
The legal issues related to this litigation combine many of my teaching and research specialities (e.g., Constitutional Law, LGBT rights, and Remedies). I have read all of the legal papers submitted in the case related to the stay (located on the Ninth Circuit website).

The government makes some valid points in its motion for a stay. Namely, an abundance of Supreme Court precedent dictates that courts must display deference to Congress when it regulates military affairs. The government argues that the District Court failed to show proper deference when it issued the injunction.

Some of the government's arguments, however, are very flawed. For example, the government continues to use the dramatic label "worldwide injunction" to describe the judge's order. That label is geared to catch the attention of the 24-hour news racket, but it has very little legal value.

The lower court's injunction properly enjoined the government from enforcing a statute that it had already determined was unconstitutional on its face. The only reason why the injunction is "worldwide" is because the military has a worldwide presence. Nothing is gained from making dramatic -- but baseless -- legal arguments.

Furthermore, the government contends that the injunction should only apply to the plaintiffs and not to all gays and lesbians currently in or who seek admission to the military. This argument is also flawed.

The District Court held that the law on its face violates the Constitution. While this conclusion is susceptible to reversal, once a court determines that a law is "facially" unconstitutional, it can enjoin enforcement of that law altogether. If, on the other hand, the court had only decided that the law was unconstitutional "as applied" to the plaintiff in this litigation (i.e., the Log Cabin Club), then a more limited injunction would have been appropriate.

Political Issues
The case is undoubtedly a political nightmare to Democrats. During his presidential campaign, Barack Obama described himself as a "fierce" advocate for LGBT rights. He has also repeatedly said that he opposes DADT. Nonetheless, his administration has defended the statute and has now obtained a temporary stay of a judicial order that bans enforcement of a law he claims to oppose.

Dan Choi -- a former member of the military who was discharged because he is gay -- was on the news circuit this morning expressing anger over the Obama administration's decision to pursue an appeal in the litigation. Choi also stated that he would not vote for Obama in 2012.

It is likely that many other LGBT rights advocates will express similar disdain for Obama and the Democrats. But Obama has clearly chosen to align himself with conservative interests on this subject, even as he attempts to support gay rights. He is not the first (and probably will not be the last) president to triangulate on this matter.

Pentagon Instructs Military Recruiters to Accept Gay and Lesbian Applicants

In response to a federal court order enjoining the enforcement of Don't Ask, Don't Tell, the Pentagon has instructed military recruiters to accept gay and lesbian applicants. DADT is a federal statute that bars participation in the military by gays and lesbians. Although the policy suggests that the military will not inquire about a servicemember's sexual orientation, numerous individuals have faced termination without "telling" the military about their sexual identity.

Last week, federal judge Victory Phillips in California issued an injunction that bars enforcement of DADT. The injunction applies to the military as a whole.

Although the government argued that the injunction should only apply to plaintiffs in the litigation, this conservative approach is not warranted by legal precedent. Nevertheless, appellate courts and especially the U.S. Supreme Court could reverse the injunction for failing to accommodate the military's belief (albeit a weak position) that inclusion of out gays and lesbians will harm troop morale.

Furthermore, as I have previously argued on this blog, the court's conclusion that DADT violates the Constitution is vulnerable to reversal for several reasons. The conservative bloc on the Supreme Court -- including Justice Kennedy -- could punch holes in the ruling by applying precedent that takes a more moderate approach to gay rights.

Nevertheless, at a hearing today, Judge Phillips indicated that she will not likely stay the injunction pending appeal. Accordingly, Pentagon officials have told recruiters to stop enforcing the policy with respect to applicants. It is unclear from early news reports whether the Pentagon has discontinued enforcing the policy against current members of the military, as the court order requires it to do.

Washington Post Columnist "Angry" With Injunction Banning DADT

Washington Post columnist Jonathan Capehart is "angry" with federal judge Victoria Phillips's order that enjoins the military from enforcing Don't Ask, Don't Tell. Although Capehart agrees with the "fairness" of the ruling, he believes that Congress should repeal the statute:

[T]his ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "don't ask don't tell" ought to be done by Congress. Unfortunately, Congress has failed to act.

It is not entirely clear whether Capehart is simply angry that Congress "failed to act" or whether he believes that the court should have waited for Congress to act. If Capehart is angry with Congress alone, then I agree with his position.

If Capehart, however, believes that the court should have waited for Congress to act, then I must dissent from this position. People have made similar arguments in other contexts. For example, conservatives, including members of the Supreme Court, have argued that the Supreme Court should have declined to find a constitutional right to terminate a pregnancy in Roe v. Wade. At the time, conservatives argued that the democratic process -- not courts -- should resolve the matter. Similarly, conservatives have criticized court rulings that invalidate laws banning same-sex marriage, and they have expressed a preference for legislative action instead.

Judge Phillips, however, did not "repeal" DADT. Instead, she enforced the Constitution. Generally, judges should not wait for lawmakers to act before they remedy violations of the law. This argument is even more compelling when the same legislature (Congress) enacted the unconstitutional law in the first place. I commend the judge's ruling -- even though I think parts of it are subject to criticism, if not reversal. Congress has delayed justice in this area far too long.

Federal Judge Enjoins DADT, But Ruling Not Flawless

A federal judge in California has declared Don't Ask, Don't Tell unconstitutional and enjoined enforcement of the anti-gay policy. The judge held that the policy violates the Due Process and First Amendment rights of gays and lesbians. Both the opinion and the injunction are available online.

I have read the injunction and the 86-page opinion. Although I agree that DADT is unconstitutional (and homophobic), the judge's ruling is not without weaknesses. There are three elements to the decision that could result in a reversal.

First, the court does not substantially discuss "deference" to the military. Although military deference has often resulted in unjust rulings, it is still a doctrine that the Supreme Court applies in cases challenging both military practices and federal statutes regulating the military. I would like to have seen more discussion of this subject in the opinion.

Second, the court applied "heightened scrutiny" to determine whether the policy violated the Due Process Clause of the Fifth Amendment. Heightened scrutiny refers to a more rigorous judicial test that usually applies when important rights are at stake or when the government is engaging in certain impermissible forms of discrimination.

The court reasoned that the Supreme Court ruling in Lawrence v. Texas and Ninth Circuit caselaw mandate the application of heightened scrutiny. It is unclear, however, whether Lawrence requires the application of heightened scrutiny. At least one federal appeals court has ruled that it does not, and many progressive legal scholars have, in fact, condemned the case for not being as serious about anti-gay discrimination as many commentators believe it is. Furthermore, the specific Ninth Circuit test is not widely applied in constitutional cases, and this could present problems if the litigation reaches the Supreme Court.

The First Amendment ruling also raises questions. Several other courts have denied that DADT raises First Amendment questions. These courts reason that admissions of sexual orientation simply inform the military that the individual fits within a prohibited class of service members. I do not believe that the issue is this simple, and neither does the federal judge in California. Nonetheless, I suspect that the government will contest this portion of the ruling as well.

There is one additional issue that I do not believe will lead to a winning argument for the government. The court's injunction permanently enjoins the military from enforcing DADT. The government argued that the court should have issued a more discrete injunction and enjoin enforcement of the policy only against members of The Log Cabin Club (the conservative gay organization that brought the litigation). Although some conservative caselaw calls for limited injunctive relief, precedent supports generalized injunctions in these circumstances.

In sum, I agree with the outcome of the case of much of the court's reasoning. I have only highlighted these weaknesses to inform readers who abhor the policy that the fight against it is not over.

Appeals Court Grants Stay in Prop 8 Case

The US Court of Appeals for the Ninth Circuit has ordered a stay of a federal court ruling that invalidated Proposition 8 -- a California constitutional amendment that bans same-sex marriage. The court also established a briefing schedule and set oral arguments for December 6. Accordingly, the stay will likely remain in effect until late this year or even early 2011.

Finally, the court also requested briefing on the "standing" issue. Depending on how the court interprets existing caselaw, it could determine that the private organizations that oppose same-sex marriage lack standing to bring the appeal.

UPDATE: Several nonlawyer commentators have construed the court's request for argumentation on the standing issue as an indication that it is inclined to rule against the private organizations. I would not read that language so broadly. This is typically how courts ask for briefing on procedural matters that could preclude a ruling on the merits. It is not a glimpse into the court's thinking on the standing issue. In fact, I highly doubt that the panel has actually thought much about the issue.

A Conservative Blogger's Curious Satire: Ground Zero Gay Bar

Conservative blogger Greg Gutfeld says that he is planning to open a gay bar in lower Manhattan near the so-called "Ground Zero Mosque." Gutfeld says that he is "serious," but his article seems satirical:

So, the Muslim investors championing the construction of the new mosque near Ground Zero claim it's all about strengthening the relationship between the Muslim and non-Muslim world.

As an American, I believe they have every right to build the mosque - after all, if they buy the land and they follow the law - who can stop them?

Which is, why, in the spirit of outreach, I've decided to do the same thing.

I'm announcing tonight, that I am planning to build and open the first gay bar that caters not only to the west, but also Islamic gay men. To best express my sincere desire for dialogue, the bar will be situated next to the mosque Park51, in an available commercial space.

This is not a joke. I've already spoken to a number of investors, who have pledged their support in this bipartisan bid for understanding and tolerance.

As you know, the Muslim faith doesn't look kindly upon homosexuality, which is why I'm building this bar. It is an effort to break down barriers and reduce deadly homophobia in the Islamic world.

Many conservative blogs have reported this story as if represented a major rebuttal of liberal support for the mosque. Apparently, the notion of having a gay bar near the mosque will outrage its supporters, and their anger will allow them to see the perspective of the mosque's opponents -- or at least expose them as hypocrites.

There is one major wrinkle in this line of reasoning. The idea of a gay bar near or next to a mosque is not inherently offensive. The idea of a gay bar that is "friendly to men of Islamic faith" is also not inherently offensive. Gutfield's satire appears to rest on his belief that homophobia will paralyze supporters of the mosque. There is no reason to believe that it would.

If Gutfeld is truly serious about supporting Muslim glbt individuals, he should contact members of Al-Fatiha -- a US-based organization for Muslim glbt individuals. Of course, Gutfeld is not serious. His homophobic satire, however, is seriously offensive.

Argentina Legalizes Same-Sex Marriage

Argentina has legalized same-sex marriage. The Senate passed the measure early this morning. The House had already approved the bill, which President Cristina Fernandez supports.

Federal Court Invalidates Section 3 of DOMA. Is Reversal Likely?

In two separate opinions, a federal district judge in Massachusetts has ruled that section 3 of the Defense of Marriage Act violates the Constitution. Section 3 of DOMA excludes same-sex married couples from over 1,100 federal benefits (including social security survivor benefits and a host of other programs).

In one case, the judge held that Section 3 violated the equal protection rights of same-sex married couples. The judge ruled that the discriminatory policy lacked a rational basis.

The court rejected the government's asserted reasons for discriminating against same-sex couples. The government argued that DOMA encourages responsible procreation and child-bearing, defends and nurtures the institution of traditional heterosexual marriage, defends traditional notions of morality, and preserves scarce resources.

The court found these interests insufficient to warrant discrimination against same-sex married couples. The court also cited the lengthy record of overt homophobia among members of Congress who supported the legislation.

The second opinion held that Section 3 violated the 10th Amendment because it intrudes upon the ability of states to define marriage and because it conditions the receipt of federal benefits upon states depriving gays and lesbians of equal protection. The State of Massachusetts brought this lawsuit.

Final Take
Unless an appeals court reverses these rulings, they will benefit same-sex married couples. The decisions, however, do not provide relief for most gays and lesbians who cannot legally marry.

Also, it is quite possible that an appeals court might reverse one or both of the rulings. The 10th Amendment ruling, in particular, seems quite vulnerable to reversal in my professional opinion. It seems to rest on a more constrained view of federal power than current Supreme Court doctrine mandates. Professor Jack Balkin agrees (arguing that the court's 10th Amendment arguments "prove entirely too much").

Rand Paul on Gay Rights and Persons With Disabilities

Perhaps race is the most explosive social issue. Rand Paul's admission that he disagrees with the application of antidiscrimination laws to private companies has set off a firestorm. After an onslaught of criticism, Rand has issued a statement saying that he would not seek to repeal the Civil Rights Act of 1964. Of course, this is somewhat of a strawman argument. During the numerous interviews that led to this controversy, Paul never said he wanted to repeal the legislation, nor did anyone ask him whether he wanted to do so.

I doubt that Paul's "retraction" will settle this issue. Even if it does, this should not preclude scrutiny of some of the other areas of discrimination that Paul addressed during those interviews.

Gay Rights
During an interview with the Louisville Courier-Journal, Paul said that Don't Ask, Don't Tell has "worked relatively well." DADT, however, has resulted in the discharge of thousands of qualified members of the armed forces.

Paul also described DADT as a "nonfraternization policy," which is patently false. Military rules certainly prohibit sexual relations among troops, but Don't Ask, Don't tell prevents any openly or known gay or lesbian person from serving in the military, regardless of whether the individual has violated nonfraternization rules. Paul seems to equate being gay with an individual having sex with his or her colleagues. This is a highly flawed position.

Americans With Disabilities Act
Paul appeared on NPR the day following his primary victory. During the interview, Paul reiterated his arguments regarding the Civil Rights Act of 1964. He also discussed the Americans with Disabilities Act, which prohibits discrimination against persons with disabilities in places of public accommodation, employment and other settings.

With respect to the ADA, Paul said that:

I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who's handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to the solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions.

Paul's portrayal of the ADA is terribly misleading. The statute does not even apply to the setting he describes, unless the building is a shopping center, airport or other transportation facility, or a medical office. As summarized by Department of Justice materials, ADA regulations include the following exemption regarding elevators in buildings:

This section does not require the installation of an elevator in a facility that is less than three stories or has less than 3000 square feet per story, except with respect to any facility that houses one or more of the following:

(i) A shopping center or shopping mall, or a professional office of a health care provider.

(ii) A terminal, depot, or other station used for specified public transportation, or an airport passenger terminal (italics added). . . .

In other words, Paul creates a frightening and misleading hypothetical in order to trash federal antidiscrimination law.

Final Take
Although Paul has tried to run away from his comments about race, he has not even begun to address his troubling statements concerning gay rights and the ADA. The media should not let him off the hook regarding these important issues.

For more on this issue, see: Rand Paul and Civil Rights: MISERABLE and A Conservative Defense of Rand Paul: He Is Telling the Truth; He's Not a Racist.

Did Anti-Gay Homophobe "Rent" A "Boy" for Vacation Travel?

The Miami New Times, an affiliate of the Village Voice, reports that George Alan Rekers, an anti-gay Emeritus Professor at the University of South Carolina, recently traveled to Europe with a male prostitute as his companion.  According to the Miami New Times, Rekers connected with his travel companion through the website "Rent Boy," which prominently features explicit advertisements for gay male escorts.

Normally, I would not deem this story newsworthy.  It does involve the "oldest profession."  But Rekers is one of the most prominent anti-gay advocates in the nation.  Rekers is an officer of NARTH -- the National Association for Research and Therapy of Homosexuality.  NARTH advocates "conversion therapy" for LGBT individuals, pitting the group against the vast majority of mental health professionals who conclude that being gay or lesbian is not a product of mental illness.

Rekers has also testified against gay and lesbian plaintiffs who filed lawsuits challenging state bans on gay adoptions. Rekers believes that gay and lesbian parents are unfit.

Rekers was also a founding member of FRC -- the Family Research Council. FRC is a rightwing advocacy group that vehemently opposes gay rights.  The group's homepage contains articles blasting efforts to repeal Don't Ask, Don't Tell and to pass ENDA -- the Employee Non-Discrimination Act.  ENDA would ban employment discrimination on the basis of sexual orientation and gender identity.

Rekers' "excuses" are very intriguing -- and comical. He said he did not discover that his companion was a male escort until the middle of the trip -- although he did not deny meeting him on Rent Boy, an explicit site for male prostitution.  He also claims that he hired the escort to help him carry his luggage.

Absolutely decadent.

Update: Well, this is all too predictable. According to the blog Joe My God, Rekers says he took the young hustler to Europe in order to teach him the Gospel of Jesus!

Army Secretary to Ignore Don't Ask Don't Tell

Secretary of the Army John McHugh says he will simply ignore Don't Ask Don't Tell. McHugh says that it is "counterproductive" to pursue discharges of gays and lesbians, while he is simultaneously interviewing servicemembers about the anti-gay policy. Apparently, some gay or lesbian individuals have revealed their sexual orientation to McHugh during the course of his research.  McHugh says he does not want to penalize them for being open and honest. This sounds like a great approach.

McHugh's statement goes farther than the recent move by Secretary of Defense Robert Gates. Gates recently announced that the military would no longer discharge individuals whose gay or lesbian status was revealed by a third party. McHugh, however, will not enforce the policy against individuals who come out on their own.

Gates Supposedly Will Announce New Don't Ask, Don't Tell Rules

Secretary of Defense Robert Gates is reportedly set to announce new rules that will relax enforcement of Don't Ask, Don't Tell -- the controversial policy that excludes known gays and lesbians from military service. It is unclear exactly what changes Gates will make. Nearly a year ago, he announced that the Department of Defense was studying ways, short of a repeal, to reduce the unfairness associated with the policy.

South Dakota Police Chief Says Cops Followed Rules By Outing Lesbian

Chief Steve Allender of the Rapid City, South Dakota police department says that his officers followed protocol when they outed Jene Newsome to Air Force authorities.  This decision subsequently led to her discharge.

My Take
I highly doubt that "protocol" requires officers to  peak through a kitchen window, read documents on a table, and report the existence of a lesbian marriage to military authorities.  Despite the suspicious facts of the case, Allender refuses to say that the officers acted with ill will. He says that it is difficult to know what motivates others. That is true, but homophobia is a pervasive social fact. The officers knew exactly what would happen if they reported the marriage. They likely did so to create those results. Allender should not try to deny the obviously spiteful and petty behavior of his staff. Instead, he should work to root out all forms of pernicious bias from the police department.

What Cruel Country Fires People For Getting Married: The United States

The Jene Newsome story is bringing new attention to the military's anti-gay policies. Newsome, who served in the Air Force for nine years, lost her career because she got married.

Newsome legally married another woman, and South Dakota police revealed that information to military officials. It appears that the cops were trying to locate Newsome's partner, but she did not assist them. So, they used her marriage as retaliation.

The fact that a marriage can be used as the basis for punishment underscores the nastiness of Don't Ask, Don't Tell and anti-gay discrimination generally. While the sluggish Obama Administration waits another year to "study" how to allow openly gay and lesbian people to serve in the military, professionals like Newsome will continue to lose their jobs -- which the wretched economy makes more traumatic. Shame on U.S.

Virginia Governor Reverses Himself and Attorney General on Anti-Gay Discrimination

Virginia Governor Bob McDonnell has reversed himself and Attorney General Ken Cuccinelli on anti-gay discrimination. Last week, Cuccinelli sent a letter to public colleges and universities in Virginia demanding that they rescind policies the prohibit discrimination on the basis of sexual orientation. This letter led to public outcry.

Today, Governor McDonnell signed an executive directive that prohibits state workers from discriminating on the basis of sexual orientation in state agencies. The executive directive appears to reverse Cuccinelli's position.

Although McDonnell's two Democratic predecessors -- Mark Warner and Tim Kaine -- issued executive orders that prohibited sexual orientation discrimination by state workers, McDonnell, a Republican, initially balked at the idea and refused to do so. McDonnell, however, has changed course amidst a chorus of protests responding to Cuccinelli's letter. Apparently, political activism can still effectuate change.

UPDATE: Governor McDonnell signed an "executive directive," not an "executive order." Rachel Maddow has stated that an executive directive has no legal force (unlike an executive order). I have not found any Virginia authority to support this claim, although now many liberal bloggers have run with it as an accurate statement of Virginia law.

UPDATE II: The Washington Post reports that an executive directive has legal force, but it may not empower individuals to seek relief in courts. It is unclear, however, whether an executive order could authorize lawsuits for sexual orientation discrimination. Typically, legislation -- not executive action -- empowers people to sue. The Virginia legislature has declined to add sexual orientation to existing civil rights legislation. Therefore, an exectuvie order that included sexual orientation might not create a cause of action for a civil suit. Accordingly, the distinction between an executive order and executive directive is possibly just a matter of semantics -- not law.

NYT Op-Ed Defends Sexism and Homphobia in the Military

The New York Times has published an op-ed written by Merrill McPeak, a former Chief of Staff of the Air Force. Although McPeak's essay has the appearance of reasoned debate, it cannot escape his narrowness and bigotry.

McPeak was a military chief when Congress passed "Don't Ask, Don't Tell." President Clinton vowed to lift the military's ban on "homosexuals" altogether, but a loud and homophobic reaction led to the DADT compromise. McPeak's essay simply reiterates the same unsubstantiated claim he made over a decade ago -- that "allowing open homosexuality in the ranks would probably damage the cohesiveness of our combat units."

Contrary to Peak's mischaracterization, lifting the ban would not allow "open homosexuality" in the ranks. Instead, it would permit out gays and lesbians to serve.

McPeak refuses to accept this issue as a civil rights question. Although he rightfully argues that legal standards often allow the military to utilize different standards than civilian society, this does not make DADT a rational or lawful policy. Even in civilian employment, persons can be excluded for traits that are validly linked to job performance. So, for example, a person who cannot walk probably could not legitimately argue that he or she should qualify as a firefighter or as a member of a SWAT team.

Homosexuality, by contrast, is not linked to performance, and McPeak's essay does not even try to make the connection. Therefore, his comparison of military and civilian standards is unpersuasive.

Instead of showing that individual gays and lesbians are unfit for military service, McPeak makes the tired assertion -- refuted by several studies -- that the mere presence of openly gay and lesbian servicemembers will undermine cohesion among the troops. In particular, he says it will degrade the military's "warrior culture":

Armies have to care about what succeeds in war. Sometimes they win or lose because of material factors, because one side has the greater numbers or better equipment. But armies are sure to lose if they pay no attention to the ideas that succeed in battle. Unit cohesion is one such idea. We know, or ought to, that warriors are inspired by male bonding, by comradeship, by the knowledge that they survive only through relying on each other. To undermine cohesion is to endanger everyone.

I know some will see these ingredients of the military lifestyle as a sort of absurd, tough-guy game played by overgrown boys. But to prepare warriors for a life of hardship, the military must remain a kind of adventure, apart from the civilian world and full of strange customs. To be a fighter pilot or a paratrooper or a submariner is to join a self-contained, resolutely idealistic society, largely unnoticed and surprisingly uncorrupted by the world at large.

I do not see how permitting open homosexuality in these communities enhances their prospects of success in battle. Indeed, I believe repealing “don’t ask, don’t tell” will weaken the warrior culture at a time when we have a fight on our hands.

McPeak uses the exact same arguments that have justified the exclusion of people of color, women and gays and lesbians from the military. In fact, his view that "male bonding" is a key ingredient of a successful military would justify the exclusion of women -- even though their presence in "combat" situations today is greater than at any period in history.

I find it odd that McPeak apparently believes that so-called "warriors," whom the nation expects to defend the USA, invade other countries, put their lives and health at risk, and to abandon families and loved ones, would become blithering idiots around out gays and lesbians. Perhaps McPeak is simply projecting his own homophobia upon the nation's "warriors."

Military to "Review" How to Repeal DADT; Lieberman Proposes Repeal

Two important developments have happened regarding Don't Ask, Don't Tell -- the military's antigay policy.

Gates Orders "Review" of Best Way to Repeal DADT
First, Secretary of Defense Robert Gates has instructed a team of military leaders to "study" to best way to repeal DADT. This is the typical style of the Obama administration. The report is due on December 1, 2010. Gates issued a memo that provides some guidelines for exploration:

An integral element of this review shall be to assess and consider the impacts, if any, a change in the law would have on military readiness, military effectiveness and unit cohesion, and how to best manage such impacts during implementation.

Is it just me or does this sound unnecessarily dramatic and time-consuming? The memo almost has a Paul Revere feel to it: "the Gays are coming.....the Gays are coming....must prepare." Also, the military is taking a year (added to all of the previous years) to figure out the best way to deal with openly gay and lesbian servicemembers as opposed to the ones it forces in the closet. The results of this study could be less than desirable. Look at healthcare reform.

Senator Joe Lieberman Slated to Introduce Legislation Repealing DADT
Today, Senator Joe Lieberman will fulfill a promise and introduce a bill to repeal DADT. Lieberman's bill will repeal DADT and prevent discrimination by the military on the basis of sexual orientation -- something that sounds far more promising that Gates' review. Co-sponsors of the bill include Senator Carl Levin, Chair of the Senate Armed services Committee, Senator Mark Udall, Senator Kirsten Gillibrand, and Senator Roland Burris.

Source: Politico

2 Generals Horrified by Gays and Lesbians

The New York Times reports that Gen. George W. Casey Jr., the Army chief of the staff, and Gen. Norton A. Schwartz, the Air Force chief of staff, oppose the move to repeal Don't Ask, Don't Tell. DADT is a statute that excludes known gays and lesbians from military service. President Obama has promised to seek repeal of DADT. Recently, Senator Joe Lieberman has said that he will introduce a bill to repeal the legislation.

Casey, appearing before the Senate Armed Services Committee, said that "I do have serious concerns about the impact of repeal of the law on a force that’s fully engaged in two wars and has been at war for eight-and-a-half years. . . We just don’t know the impacts on readiness and military effectiveness." Schwartz testified before the House Armed Services Committee and stated that “[t]his is not the time to perturb the force that is, at the moment, stretched by demands in Iraq and Afghanistan and elsewhere without careful deliberation. . . ." Studies, however, show that the presence of out gays and lesbians would not disrupt military service.

The Defense Department advanced similar arguments to support discrimination against gays and lesbians during the Bush administration. Bush's Secretary of Defense Robert Gates, who also heads the department in the Obama administration, also advanced those claims. Gates, however, now supports lifting the ban.

My Take
I am always humored when military personnel argue that the mere presence of an openly gay or lesbian person could disrupt service or demoralize the troops. The nation expects members of the armed forces to abandon their families and loved ones, invade countries, slaughter opposing forces, and protect national security. But these same "warriors" are apparently so fragile that they will have a nervous breakdown if they have to serve alongside known gay or lesbian individuals. If this is the case, then perhaps they are not tough enough for military service in the first place.