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Update on repeal of Don't Ask, Don't Tell policy

Friday, October 22nd, 2010

Several new development this week regarding the repeal of the Don't Ask, Don't Tell (DADT) policy. The battle for repeal is occurring in all three branches of the government.

First, the Judicial Branch: A federal court ruled that the DADT policy violates the Constitution, and later issued an injunction stopping enforcement of the policy. The case was appealed and a three-judge panel granted a temporary stay against the enforcement of DADT until October 25th. It's important to note that the stay was not granted based on the previous court ruling, but was temporarily issued in order to fully understand the impact of the immediate change in policy. The court may either allow the stay to remain in place through the appeals process, or may remove the stay on Monday.

For the eight days the injunction was in effect, the Pentagon told military recruiters to accept applications from openly gay candidates. When the stay was granted, the DADT policy was again being enforced. Yesterday, Defense Secretary Robert Gates ordered that any discharges under DADT can only be made by the service secretaries in consultation with the undersecretary of defense for personnel and readiness, and the defense general counsel.

The Legislative Branch: The US House of Representatives has already passed a repeal of DADT, but the law was blocked in the Senate through a filibuster. Not only did the Senate refuse to vote, the filibuster blocked any debate from taking place on the issue. Since the repeal is part of the annual defense department budget authorization, the Senate will be forced to deal with the issue upon they return from recess after the elections.

The Executive Branch: President Obama has repeatedly promised to end the DADT policy, but the administration filed an appeal against the court ruling. This was actually expected because the Department of Justice is required to defend all laws passed by Congress.

On December 1st, a working group report is due to advise the military on the best process to implement the repeal. A survey was conducted on members of the military, but the questions were very biased. It is expected to find that the military is against the repeal, but those findings should be irrelevant. If a survey was done prior to racial integration or allowing women in combat, the same negative results would be found throughout the ranks.

Repeal of DADT isn't about "allowing gays in the military." Repeal of DADT would only mean that gays won't be forced to lie about their orientation. There are over 65,000 gays serving honorably and effectively throughout every branch of service. Our forces are fighting side-by-side with gays serving in other militaries with no issues.

So, what happened for the eight days that DADT was not enforced? Nothing. There were no protests, fights, loss of unit cohesion, or any other disaster that was promised by opponents of the repeal. Our military is comprised of professionals who do their duty and follow orders. They actually took the news quite light-heartedly. Since the "Don't Ask" part was not in effect, they went around asking each other, "Are you gay?" but it was done in a joking manner - not in a hateful one. Until the DADT policy is fully repealed, it is important for no troops to break the "Don't Tell" part by revealing their sexual orientation.


From the Press Briefing by Press Secretary Robert Gibbs on 10/14/2010:

Q: Thanks, Robert. Two topics. I wanted to follow up on some of the discussion yesterday about the "don't ask, don't tell" ruling. Does the President have a message yet for officers and service members on how to react until the legalities are settled? Should gay service members keep their sexuality secret?

MR. GIBBS: What I would tell you is that the Department of Defense is working on guidance with the entire chain of command. That should be ready and out soon, and I would refer you to the Department of Defense on that.

Q: What can you explain is the White House's role, if any, in that discussion?

MR. GIBBS: In what? The guidance?

Q: That should be in the guidance, yes.

MR. GIBBS: My assumption is -- and I would double-check -- my assumption is we've -- people here may have seen it. I don't know the answer to that, though, and let me check on it.

Q: Okay. And more broadly, can you describe, since this ruling came down, I guess a couple days ago, what the President's engagement and/or involvement has been?

MR. GIBBS: There have been discussions obviously between this building and the Department of Defense and the Department of Justice. The President has been involved in meetings with the Counsel's Office to get an understanding of the lay of the land and has been very involved in this.

Ben, you know that the President has -- as I stated yesterday after having talked to him -- the President believes that this is a policy that undermines our national security, discriminates against those who would sacrifice their lives for their country, and is unjust; that the policy needs to be changed and should be changed. His hope is that the Senate will take up the legislation pending before them to do just that, as the House of Representatives has already done.

Q: One last thing on this. I mean, you just talked about how the DOD is doing guidance and the call to Congress to pass that law, but is the President comfortable with sort of how this stands? There's a lot of -- at this moment, a lot of deferring going on. Does he feel like he needs to --

MR. GIBBS: Deferring what -- I'm sorry.

Q: Deferring to Congress to pass the law, deferring to DOD to take the lead on responding.

MR. GIBBS: Well, I don't know if I -- there are certainly places that -- obviously Department of Defense, working on guidance for the entire chain of command, that would be the department that would have obviously purview over that.

In terms of -- I don't think we're deferring to Congress. The President has been active in encouraging and imploring Congress to do the right thing and end a harmful, discriminatory, unjust law. That's been his position for as long as I've worked for him since 2004.

I think we're close; the House has voted on that. And as I said yesterday, the courts have demonstrated that the time for "don't ask, don't tell" is coming to an end. There is a legal road map that shows the courts are ruling on behalf of plaintiffs and against this law. So I think, as I said yesterday, in discussing with the President, I think this policy -- I think the end of this policy -- the time for the end of this policy has come, and that it will end quite soon.

Q: Thanks, Robert. The very first question I asked you on Tuesday was whether there had been any discussion of how to bring DOD into compliance with the injunction. It's now 48 hours later. There's been nothing -- to this very minute, there's been nothing yet out of you guys or DOD or DOJ on how to bring them into compliance with the injunction.

Meanwhile, as first reported by The New York Times this morning -- I've also verified this myself -- there are recruits walking into -- hopeful gay recruits walking into places, trying to enlist and being turned away by recruiters -- one specifically, Omar Lopez in Austin, Texas. Are you saying -- I know you said that DOD is going to be issuing guidance on this, but you seem completely deferential to them. Are you saying the White House has no concern and bears no responsibility for the fact that DOD seems to be out of compliance and potentially in contempt of court?

MR. GIBBS: Well, I'm not a judge or have a legal degree in terms of the last part of the question, Kerry. We have been in and are working with DOJ and DOD regarding the legal questions surrounding the judge's ruling. I expect, as I said earlier, that DOD will have guidance soon. And I would stay tuned to the Department of Justice for news or developments on the legal side.

Q: But any back-and-forth between the White House and the Pentagon on what to do about this, on the fact that they're -- I mean, these recruiters said --

MR. GIBBS: I don't know the nature of every discussion, Kerry, but the White House counsel has certainly been in touch with the counsel at the Pentagon over the course of the past 48 hours, yes.

Q: And what is the nature of that conversation there?

MR. GIBBS: I have not been in most of those discussions, Kerry. Again, I think they are working through legal issues and I would point you over to the Department of Defense on that.

Q: Is the President concerned about that? I mean, the fact that the DOD isn't --

MR. GIBBS: Absolutely. Look, as I said to an earlier question, I think the President clearly has been involved in and been in meetings about our policy, about the steps that we're taking. I came out yesterday after -- only after I'd talked to him about the case itself. So, yes.

Q: And one last question?

MR. GIBBS: Sure.

Q: Thank you very much. In the lame duck session, you've talked about being hopeful that the Senate will actually pass this. Will the President actually lobby senators and work to make that happen? I mean, will he be reaching out to people, along with Secretary Gates perhaps?

MR. GIBBS: Well, I know that the President -- it's an important priority of the President. It has been for a long time. We've made progress in the House. And I anticipate, yes, that the President will be involved in moving that important piece of legislation that contains a repeal of "don't ask, don't tell" in it.

Q: So actually talking to senators?

MR. GIBBS: I think -- again, the President believes it's time for this policy to end, that the best and most durable way for it to happen is through legally repealing it. That's what he supported. That's what he's worked with members of the House to get passed, and will do so in the Senate as well.

Q: No commitment on talking to senators?

MR. GIBBS: I just said that he would be actively involved in that. If that, Kerry, involves talking to senators, absolutely. Does that involve staff here talking to the staff of senators? Absolutely. I think you took "yes" for "no."


Department of Justice: The Civil Rights Division and LGBT rights October 15th, 2010

Under the leadership of Assistant Attorney General Tom Perez, and with the strong support of Attorney General Eric Holder, the Civil Rights Division of the Department of Justice has worked to reinvigorate its more traditional enforcement responsibilities and transform itself to meet the civil rights challenges of the 21st century.

Among these challenges is the struggle to achieve equal rights for lesbian, gay, bisexual and transgender (LGBT) individuals.

This week, Assistant Attorney General Perez joined the Mayor of Cleveland, Frank Jackson, and U.S. Attorney Steve Dettelbach, to celebrate LGBT Heritage in Cleveland. During remarks delivered at the celebration and awards ceremony held in the City Hall Rotunda, Assistant Attorney General Perez said:

"From our nation's founding, individuals have fought for their rights, facing dozens of defeats for each victory. Progress has so often been painfully incremental. But each victory, however small, was motivation enough to keep moving. And so it has gone with the fight for LGBT equal rights. For decades now you have stood up to challenge discrimination, misconception and sometimes hatred. And hard-fought victories have been won. But the people in this room know that we have not yet reached our goal."

The Civil Rights Division is committed to advancing the rights of LGBT individuals, and to using its existing authorities in support of LGBT rights.

Nearly a year ago, the Division received significant new authority to protect LGBT civil rights with the passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which provides nationwide protection to LGBT individuals from physical attacks based on the victim's actual or perceived sexual orientation or gender identity. Significantly, the long overdue law was the first time the words "sexual orientation" and "gender identity" appeared in federal law to protect civil rights of LGBT individuals. The Department of Justice is committed to vigorously enforcing the Shepard-Byrd law, along with our already existing authorities to forcefully respond to hate-motivated violence, and already has a number of open investigations under the new law.

Unfortunately, hate crimes are a symptom of the climate of intolerance towards LGBT individuals that has had a particularly devastating impact on the lives of LGBT youth, as evidenced by the six recent suicides by LGBT teens. Each of these teens was a victim of bullying, underscoring the challenge we face in ensuring that our schools provide a safe and tolerant environment for all students.

The Civil Rights Division has used its existing legal authority to hold a school district accountable for the ongoing harassment of a gay teen who failed to conform to gender stereotypes, and the Justice Department is working with the Department of Education and other agencies on the development of a national anti-bullying strategy.


I honestly believe that the days of the DADT policy are numbered. As events unfold, I'll post them to my blog.

Best regards,

-- Gary Wright II

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