"We must protect kids from bullying"

“Asher Brown was a 13-year-old straight-A student in Houston. Tyler Clementi was 18, a college freshman who played violin in the Rutgers Symphony Orchestra. Seth Walsh, a 13-year-old from a small city in central California, loved french fries and Pokemon cards. Billy Lucas was a 15-year-old from Indiana who showed horses. Justin Aaberg from Minnesota was 15 too and posted his cello music on YouTube. What did these young people have in common? They all died recently by suicide after being harassed because they were gay or believed to be gay.

Millions of young people will wake up in America today knowing they'll be bullied before the day is over. For many, the harassment will focus on their race, a physical or intellectual disability, their performance at school, or another characteristic that sets them apart. We know that gay, lesbian, bisexual and transgender students are among the most likely to be targeted. Four out of five gay, lesbian, bisexual and transgender middle-schoolers say they are regularly harassed because of their actual or perceived sexual orientation or gender identity. Three quarters of high-schoolers say they "frequently" or "often" hear derogatory and homophobic remarks. As these attacks add up, they can become an unbearable burden for young people. Bullied teens are more likely to abuse drugs or alcohol. They're more likely to skip school. They're more likely to be depressed. The result is that gay, lesbian and bisexual teens are up to seven times more likely to have reported attempting suicide than their peers.

We cannot continue to stand by while our children are subjected to this physical and emotional violence. Protecting young people from bullying is just as essential to their healthy development as making sure they have good teachers and access to health care. Over the years, we've heard excuse after excuse for why this harassment continues. One argument is that bullying often happens out of sight - in locker rooms, deserted hallways and on social media websites. But we know that 85 percent of bullying happens in front of witnesses, including adults. Others operate under the sad belief that bullying is just another part of growing up, that it 'toughens kids up.' The events of these last few months should put this outrageous theory to rest. Still others say some kids are just mean and there's nothing we can do about it. But this excuse ignores the effective strategies we've developed for reducing bullying. For example, in schools that have an anti-harassment policy that specifically addresses sexual orientation or gender identity, gay, lesbian, bisexual and transgender students are 50 percent more likely to feel safe in school and one-third less likely to skip a class. Even more promising are approaches that get entire communities involved. When principals, teachers, school nurses, pediatricians, social workers, faith leaders, law enforcement agents, parents and youth all have the information they need to recognize bullying and respond to it, bullies get a clear message that their behavior is unacceptable. That's why last year, the Departments of Education and Health and Human Services joined forces with four other departments to create a federal task force on bullying. In August, the task force staged the first-ever National Bullying Summit, bringing together 150 top state, local, civic and corporate leaders to begin mapping out a national plan to end bullying. And we launched a new website, http://www.bullyinginfo.org/, which brings all the federal re- sources on bullying together in one place for the first time ever. We're also getting students involved. The Stop Bullying Now! Campaign has 80 partners across the country that help reach youth with an anti-bullying message everywhere from elementary and middle schools to Boys and Girls Clubs to public libraries to 4-H clubs. And last week, the Department of Education's new Safe and Supportive Schools program announced grants to 11 states to help them to use student, family and staff surveys to create "school safety scores" for schools in their states. Additional funds will be available for the schools with the biggest safety concerns. We're launching a similar effort to mobilize communities to prevent suicides. Last month, the Department of Health and Human Services helped announce an unprecedented National Action Alliance for Suicide Prevention, which brings together a wide range of public and private partners to coordinate anti-suicide efforts. One of its specific goals is preventing suicide in at-risk groups, including gay, lesbian, bisexual and transgender youth. Building safe neighborhoods and schools where young people can thrive is a job for all of us, not just government or schools or parents. It means speaking up the next time you hear someone use a homophobic slur, stepping in when you encounter a bully in action, and letting your local school board know that bullying isn't just part of growing up - it's a serious danger to our children.

The events of the last few weeks have filled many of us with sadness and anger. They should also fill us with determination to do everything we can to stand up for Seth, Tyler, Asher, Billy, Justin and millions of other young people who can't do it for themselves.”

Secretary of Health & Human Services Kathleen Sebelius and Secretary of Education Arne Duncan, op-ed published October 9, 2010.

Another Federal Judge Strikes Down DADT

“Major Witt’s approach to the fact finding mission of this Court was to present testimony of members and former members of her unit, the 446th AES, who testified persuasively that serving with Margaret Witt and other known or suspected gay and lesbian service members did not adversely affect unit morale and cohesion. To the contrary, it was Major Witt’s suspension and ultimate discharge that caused a loss of morale throughout the squadron.

The Court is convinced from its thorough reading of the [9th Circuit] Witt decision that an in-depth, particularized examination of Major Witt’s circumstances vis-a-vis DADT is what the Circuit Court contemplated when remanding the case for further proceedings. Support for this conclusion is found at footnote 11, wherein the Court recited some of the facts that caused it to doubt whether the government’s interest was significantly furthered by Major Witt’s suspension and subsequent discharge under DADT: “Major Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and even then, it was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion.”

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect... Serving within that unit are known or suspected gay or lesbian service men and women. There is no evidence before this Court to suggest that their service within the unit causes problems of the type predicted in the Congressional findings of fact... These people train together, fly together, care for patients together, deploy together. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds.

The evidence before the Court is that Major Margaret Witt was an exemplary officer. She was an effective leader, a caring mentor, a skilled clinician, and an integral member of an effective team. Her loss within the squadron resulted in a diminution of the unit’s ability to carry out its mission. Good flight nurses are hard to find.

The evidence clearly supports the plaintiff’s assertion that the reinstatement of Major Witt would not adversely affect the morale or unit cohesion of the 446th AES... The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be... The reinstatement of Major Margaret Witt will not erode the proficiency of the United States military.

For the reasons expressed, the Court concludes that DADT, when applied to Major Margaret Witt, does not further the government’s interest in promoting military readiness, unit morale and cohesion. If DADT does not significantly further an important government interest under prong two of the three-part test, it cannot be necessary to further that interest as required under prong three. Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment.

Conclusion: The application of “Don’t Ask Don’t Tell” to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.” US District Judge Ronald B. Leighton, US District Court Western District of Washington at Tacoma, September 24, 2010.

Appeals Court Strikes Down Florida Gay Adoption Ban

"This is an appeal of a final judgment of adoption, under which F.G. became the adoptive father of two boys, X.X.G. and N.R.G. (collectively, “the children”). The trial court found, and all parties agree, that F.G. is a fit parent and that the adoption is in the best interest of the children. The question in the case is whether the adoption should have been denied because F.G. is a homosexual. Under Florida law, a homosexual person is allowed to be a foster parent. F.G. has successfully served as a foster parent for the children since 2004. However, Florida law states, “No person eligible to adopt under this statute [the Florida Adoption Act] may adopt if that person is a homosexual.” § 63.042(3), Fla. Stat. (2006). According to the judgment, “Florida is the only remaining state to expressly ban all gay adoptions without exception.” Judge Cindy Lederman, after lengthy hearings, concluded that there is no rational basis for the statute. We agree and affirm the final judgment of adoption...

Under Florida law, homosexual persons are allowed to serve as foster parents or guardians but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons - even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children. The Department has argued that evidence produced by its experts and F.G.’s experts supports a distinction wherein homosexual persons may serve as foster parents or guardians, but not adoptive parents. Respectfully, the portions of the record cited by the Department do not support the Department’s position. We conclude that there is no rational basis for the statute...

We affirm the judgment of adoption, which holds subsection 63.042(3), Florida Statutes, violates the equal protection provision found in article I, section 2, of the Florida Constitution." Judge Gerald B. Cope Jr., Florida Third District Court of Appeal, Miami, Sept. 22, 2010.

Lady Gaga Comments on DADT Repeal Failure

"Today was an enormous DISAPPOINTMENT, for myself, and for many young American people. Not only because Don't Ask Don't Tell was not repealed by our Senators, but moreover because LEGISLATIVE PROCEDURE is being abused to stop public business, public debates, from happening while America is watching. There was a debate today, we just didn't get to watch it. Instead, it has been customary now for antiquated procedures and partisan politics to take precedence over debate, America's needs, and today, sadly, over the needs of US troops. I will keep fighting, I will not give up. I am passionate about the rights of the LGBT Community and SLDN and I will continue to activate as many young people as I can, and encourage them to get politically involved in their future." Lady Gaga, September 21, 2010.

Federal Judge Strikes Down Don't Ask Don't Tell

"Plaintiff Log Cabin Republicans attacks the constitutionality of the statute known as the "Don't Ask, Don't Tell" Act, found at 10 U.S.C. § 654, and its implementing regulations. Plaintiff's challenge is two-fold: it contends the Act violates its members' rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members' rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.

The Court finds Plaintiff Log Cabin Republicans... has established standing to bring and maintain this suit on behalf of its members. Additionally, Log Cabin Republicans has demonstrated the Don't Ask, Don't Tell Act, on its face, violates the constitutional rights of its members. Plaintiff is entitled to the relief sought in its First Amended Complaint: a judicial declaration to that effect and a permanent injunction barring further enforcement of the Act.

... the evidence at trial demonstrated that the Act does not further significantly the Government's important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants' discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline – 50% from 2001 to 2002 and steadily thereafter – in Defendants' enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants' practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government's interest in military readiness. In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don't Ask, Don't Tell Policy "significantly furthers" the Government's interests nor that it is "necessary" in order to achieve those goals. Plaintiff has relied not just on the admissions described above that the Act does not further military readiness, but also has shown the following:

By impeding the efforts to recruit and retain an all-volunteer military force, the Act contributes to critical troop shortages and thus harms rather than furthers the Government's interest in military readiness; by causing the discharge of otherwise qualified servicemembers with critical skills..., the Act harms rather than furthers the Government's interest in military readiness; by contributing to the necessity for the Armed Forces to permit enlistment through increased use of the "moral waiver" policy and lower educational and physical fitness standards, the Act harms rather than furthers the Government's interest in military readiness; defendants' actions in delaying investigations regarding and enforcement of the Act until after a servicemember returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion; by causing the discharge of well-trained and competent servicemembers who are well-respected by their superiors and subordinates, the Act has harmed rather than furthered unit cohesion and morale; the Act is not necessary to protect the privacy of servicemembers because military housing quarters already provide sufficient protection for this interest.

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

Conclusion: Throughout the consideration and resolution of this controversy, the court has kept well in mind the overriding principle that "judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged... Nonetheless, as the Supreme Court held... "deference does not mean abdication."... Plaintiff has demonstrated that it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don't Ask, Don't Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement. It is so ordered." Judge Virginia A. Phillips, U.S. District Court, Central District of California, Sept. 9, 2010.

Cal Gov Opposes Stay of Prop 8 Decision

"Defendants Arnold Schwarzenegger, in his official capacity as Governor of California, Mark B. Horton, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics, and Linette Scott, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health (collectively, "the Administration"), oppose defendant-intervenors’ "Motion for Stay Pending Appeal." From the outset, the Administration has urged the Court to resolve the important constitutional questions at issue in this case as expeditiously as possible. Now, after extensive discovery, a lengthy trial, thorough briefing, and development of a complete evidentiary record, the Court has done so. After cataloging the evidence and making detailed factual findings and legal conclusions, the Court has enjoined enforcement of Proposition 8 and, in effect, ordered California to resume issuing marriage licenses in a gender-neutral manner, as had been done before Proposition 8 went into effect. In doing so, the Court has fulfilled its constitutional duty to determine fundamental questions of due process, equal protection, and freedom from discrimination. The Administration believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California. Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect. Conversely, the Administration submits that staying the Court’s judgment pending appeal is not necessary to protect any governmental or public interest. As the Court has pointed out, California has already issued 18,000 marriage licenses to same-sex couples without suffering any resulting harm. Government officials can resume issuing such licenses without administrative delay or difficulty. For these reasons, the Administration respectfully requests that the Court deny defendant-intervenors’ motion for stay." August 6, 2010, Governor Arnold Schwarzenegger [his attorneys] submitted this brief in opposition to the motion to stay U.S. District Court Judge Vaughn Walker’s ruling invalidating Proposition 8.

Proposition 8 Struck Down

"The arguments surrounding Proposition 8 raise a question similar to that addressed in Lawrence, when the Court asked whether a majority of citizens could use the power of the state to enforce "profound and deep convictions accepted as ethical and moral principles" through the criminal code. The question here is whether California voters can enforce those same principles through regulation of marriage licenses. They cannot.

California’s obligation is to treat its citizens equally, not to "mandate [its] own moral code." "[M]oral disapproval, without any other asserted state interest," has never been a rational basis for legislation. Tradition alone cannot support legislation. Proponents’ purported rationales are nothing more than post-hoc justifications. While the Equal Protection Clause does not prohibit post-hoc rationales, they must connect to the classification drawn. Here, the purported state interests fit so poorly with Proposition 8 that they are irrational, as explained above. What is left is evidence that Proposition 8 enacts a moral view that there is something "wrong" with same-sex couples. The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians... At trial, proponents’ counsel attempted through cross-examination to show that the campaign wanted to protect children from learning about same-sex marriage in school... The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals and that parents should dread having children who are not heterosexual.

The testimony of George Chauncey places the Protect Marriage campaign advertisements in historical context as echoing messages from previous campaigns to enact legal measures to disadvantage gays and lesbians. The Protect Marriage campaign advertisements ensured California voters had these previous fear-inducing messages in mind. The evidence at trial shows those fears to be completely unfounded. Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. ("[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

CONCLUSION: Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

REMEDIES: Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to samesex couples and has not suffered any demonstrated harm as a result... moreover, California officials have chosen not to defend Proposition 8 in these proceedings. Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.
IT IS SO ORDERED.

August 4, 2010, Vaughn R. Walker, United States District Chief Judge, United States District Court for the Northern District of California.