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March 16, 2009


Gays rights legal issues are beginning to bubble-up to the top of public agendas much faster than I'm sure the Obama administration would have liked.

In at least two cases fermenting within the Justice Department, the President is being pushed into a position that he either stands behind his many promises to the GLBT community of equal rights, protections and treatment or he doesn't.

One case involves health benefits for same-sex partners in the California court system. The other involves the discharge of a 18 year Air Force veteran who is being forcibly discharged just two years before her retirement under the "Don't Ask, Don't Tell" (DADT) policy because she was "discovered" to be a lesbian. In both cases, the Obama administration (via the Justice Department) will be forced to take a stand.

A New York Times article said of the California case:

In separate, strongly worded orders, two judges of the federal appeals court in California said that employees of their court were entitled to health benefits for their same-sex partners under the program that insures millions of federal workers.

But the federal Office of Personnel Management has instructed insurers not to provide the benefits ordered by the judges, citing a 1996 law, the Defense of Marriage Act.

Now, Mr. Obama is in a tough spot. If he supports the personnel office on denying benefits to the San Francisco court employees, he risks agitating liberal groups that helped him win election. If he supports the judges and challenges the marriage act, he risks alienating Republicans with whom he is seeking to work on economic, health care and numerous other matters.

In the DADT case, Major Margaret Witt took the podium in front of the nation's capitol at a rally to repeal DADT and said:

“For 18 years I served in the military, before the Air Force discharged me because they found out I was a lesbian. But I don’t want to leave, and I’m challenging the government’s attempt to discharge me.”

This case is a little more complicated because the ninth circuit appelate court's decision narrowly focused on Maj. Witt's case specifically and doesn't necessarily challenge DADT directly.

As The Advocate reported:

When her [Maj. Witt] attempt to fight the dismissal was denied a hearing by a federal judge, her lawyers appealed the decision and the ninth circuit ultimately ruled that Witt had a right to her day in court. The decision concluded that, although the government had previously been able to discharge any LGB person under the policy, new protections provided by the 2003 Lawrence v. Texas ruling now required the government to actually prove that an individual’s presence was indeed harming unit cohesion. The ruling was also carefully constructed to only apply to Major Witt’s case.

The court did not rule on the constitutionality of ‘don’t ask, don’t tell,’ but it said because of a new precedent, ‘don’t ask, don’t tell’ has a higher burden to meet in order for an individual to be kicked out.”

C. Dixon Osburn, CEO of Osburn Management Consulting Company and former executive director of Servicemembers Legal Defense Network, a group that advocates for repeal of the policy, said:

"...the movement has always argued that the government had no evidence demonstrating that letting LGBs serve openly in the military would hurt unit morale or military preparedness.

We have tried for the last 15 years to get the government to defend themselves and the courts have just looked the other way. This case is saying, ‘No, we won’t turn a blind eye to this, you need to give us evidence that the law is sensible on a case-by-case basis.’”

The narrowness of this case's decision may allow the DOJ to let the ruling stand, without any action by them, which would send the case back to the lower court to be argued. This would give the Obama administration a little more time to finish what they already started doing - working with the Pentagon to figure out the best way to end DADT.

Although I currently support Obama's approach, I, of course, also support Maj Witt's right not to be discharged for nothing more than simply being gay.

On a personal note, the Times' logic about Obama's risk of "...alienating Republicans with whom he is seeking to work on economic, health care and numerous other matters" should he side with the California federal appeals court seems extraordinarily childish and naive for such a prestigious publication.

In case the article's author, Robert Pear, hadn't noticed, the Republicans have made it their party's policy to disagree with and belligerently fight every proposal the President has introduced to turn the country's immediate financial crisis and long-term solvency around. Even going as far as standing silently by when their self-proclaimed, de facto "leader," Rush Limbaugh, publicly and proudly proclaimed that he "hoped Obama would fail" which, in effect, is saying that he hopes the country fails. I don't think you can get much more alienated than that!

Apparently, in the minds of Republicans, having the country continue to experience poverty, mayhem and misery for a few more years would give them a better chance to regain power in 2010. How sick is that?


thegayte-keeper said...

yeah I agree with you...the time is now