Rachel Maddow’s interview with Lt. Col. Victor Fehrenbach, who has spent 19 years as a fighter pilot in the Air Force and is in the process of being discharged from the military because he’s gay, is the personification of the failure of the Don’t Ask, Don’t Tell policy and a test case for the Pentagon’s new “more humane” approach towards discharging gay and lesbian servicemembers:

FEHRENBACH: And we also don`t know if they`re taking extra time because Secretary Gates, as you know, announced new, more lenient, more humane enforcement standards in March. So maybe they`re taking the extra time to apply those standards. We hope so. As you know, those standards – some of the things you now see, my case meets all those standards. For instance, it was not credible information that was presented. It was not from a reliable source. And my chain of command did not take into consideration how that information was gained.

And then finally, it was clearly malicious intent involved by the person who outed me. So my case should be, you know, basically the poster case for the new enforcement standards. My case meets every one of those criteria. So really, the Air Force has the opportunity to do the right thing here, to dismiss my cases and retain me. And I hope they do that under these new enforcement standards.

Watch it:

On Monday, Pentagon spokesperson Geoff Morrell couldn’t understand why some gay troops would find the survey or its questions insulting. Here, Fehrenbach explains: “[Y]ou know, there are things in combat that we just don`t think about. You think about where your next meal is going to come from. You think about your next mission. You think about your family back home. And you just don`t think about who`s showering next to you.” “Questions like that – they got specific – seem somewhat insulting.”

Fehrenbach also argued that polling the troops was not effective way of ensuring effective implementation. “You know, if we wanted to see if everybody was comfortable, you know, we could ask them if they wanted to go home for Christmas or stay in a tent in Afghanistan. You`d probably get 90 percent that said they`d rather go home for Christmas,” he said. “And nobody asked me if I was comfortable while I was getting shot at eight times over Baghdad. Nobody if I was comfortable in my 13-hour mission over Afghanistan.”

The Pentagon however, insists that these questions are necessary for effective repeal. “Do you want us to put our head in the sand and ignore concerns that have been voiced to us by the force?” Morrell asked me. “It is better for us to ask some of these questions up front in as candid a manner as possible, to get as much information as possible, so we are prepared for this eventuality. It would be irresponsible of us to do otherwise.”

These two views seem irreconcilable: gay service members believe that some of the assumptions made about “homosexuals” are offensive, but the military believes that it needs to make these assumptions to garner enough information to implement repeal effectively. For now, it seems like gays will just have to feel offended.

The Mormon Church spent millions of dollars and countless man hours to pass Proposition 8 in California, and now the Salt Lake Tribune is reporting that “despite the LDS Church’s claim last week that it had not taken a stand on Argentina’s move to allow gay marriage, a high-ranking church official did join other religious leaders there to plan opposition to the bill“:

Carlos Aguero, LDS public-affairs director for Argentina and a former Area Authority Seventy, attended a July 7 meeting with leaders from several conservative Christian churches and traditional family organizations, according to a Buenos Aires newspaper. [...]

Mormon leaders in Argentina on Sunday read a letter from the Utah-based church’s governing First Presidency, reiterating its support for traditional marriage, to all congregations in that South American country. The letter did not ask members to contribute time or money to the opposition, as it had in California’s Proposition 8, which opposed gay marriage.

A Church spokesperson confirmed that “the letter was sent to local leaders in Argentina, where the faith has more than 371,000 members, according to a 2010 church almanac.” “The letter falls short of calling for political activism by members in Argentina, but is an echo of a 2008 letter from Monson to Latter-day Saints in California. Monson had called for Mormons to give their time and money to help pass Proposition 8.”

Proposition 8 won by less than 5% of the vote and “individual Mormons contributed $20 million of its $40 million war chest.” The marriage initiative in Argentina passed 33-27 in the Senate, making the country the “first Latin American nation to legalize gay marriage, granting same-sex couples all the legal rights, responsibilities and protections that marriage brings to heterosexuals.”

Family Research Council’s Tony Perkins has just sent out a frantic fundraising email alerting his members that “liberals in Congress are moving forward right now to repeal” DOMA and slamming Joseph Tauro, the Nixon-appointed judge who overturned DOMA last week:

Ever since, DOMA has been under attack by the powerful homosexual lobby, in lockstep with their liberal allies on Capitol Hill and in the mainstream media. Now they’re running full speed ahead to reach their goal.

The pace began picking up last year when President Obama signed a federal “hate crimes” law. Then came his renewed assault on “Don’t Ask, Don’t Tell” and most recently his nomination of the pro-homosexual activist Elena Kagan to the Supreme Court. And just last week an activist federal judge in Massachusetts declared unconstitutional the federal definition of “marriage”–the union of one man and one woman. He added that “it is only irrational prejudice that motivates the [traditional definition of marriage].”

The Obama Justice Department has not done its duty to defend DOMA aggressively. In fact, it appears that while Solicitor General at Justice, Elena Kagan undermined DOMA in various cases and made deliberately weak legal defenses. Imagine what she’d do with a lifetime appointment to the highest court!

It’s amusing to see how completely detached from reality Perkins is (or chooses to be), particularly since the gay community has condemned the Obama Justice Department for using Bush-era language to defend DOMA and criticized the administration for giving mere lip service to repeal.

The email suggests that conservatives will attack the administration whether it takes up unpopular liberal causes or not, and also says something interesting about the Right’s knee-jerk perception of judges that don’t agree with them as “liberal” or “activist.” For instance, Joshua Green points out that many of the recent so-called ‘gay activist’ judges were, like Joseph Tauro, appointed by conservatives:

Last year, the Iowa Supreme Court struck down a gay-marriage ban on the grounds that it violated the due process and equal protection clauses of the state constitution. The unanimous decision was written by Justice Mark Cady, a conservative placed on the court by the former Republican governor Terry Branstad…. The Massachusetts Supreme Court ruling was written by Chief Justice Margaret Marshall, named to the court by one Republican governor (William Weld) and elevated to chief justice by another (Paul Cellucci).

This summer’s other major ruling on gay marriage, along with Tauro’s, will come from the federal district court in California, where Chief Judge Vaughn Walker will decide whether to overturn the state’s Proposition 8, which bans gay marriage. The betting is that he will, which would be notable not only because of his political lineage but because Walker’s nomination by Ronald Reagan was thwarted by Democrats — led by the current House Speaker, Nancy Pelosi — who believed he was prejudiced against homosexuals. They were mistaken. Reappointed by George H.W. Bush and this time confirmed, Walker demonstrated no prejudice.

I don’t want to overstate the trend, but there is probably a difference between conservative judges — who tend to be hyper-educated lawyers and think like intellectuals — and the sort of people who actually care about hating on gays. Perkins’ email represents the latter group well.

LezGetReal points out that despite clear Congressional intent to end Don’t Ask, Don’t Tell, military retention and recruiting continues to thrive:

The Army National Guard met 94% of its recruiting goal and the Air National Guard met 99% of its recruiting goal. The eight other branches or components of the Defense Department met or exceeded their recruiting goals for the month of June 2010….According to the Defense Department, “The services also are at or above their fiscal year-to-date retention goals for the first nine months of fiscal 2010.” That means the DoD is keeping in service the numbers of personnel it needs and with the exception of the two National Guard components mentioned, they are bringing in new personnel at or above the required numbers for overall force strength.

This strikes me as something that would be front page news had we seen a drop in retention. Opponents of open services would have undoubtedly credited even the smallest recruiting dip to the “growing uncertainty over the future of Don’t Ask, Don’t Tell” and used the occasion to argue that repeal will undermine military effectiveness — and the media would have undoubtedly posed this as a problem for Congressional Democrats. These numbers, however, seem to demonstrate the weakness of the opposition.

The “retention” question is also the focus of the Pentagon’s DADT questionnaire, which asks soldiers, “If Don’t Ask, Don’t Tell is repealed, how, if at all, will it affect your willingness to recommend to a family member or close friend that he or she join the military?” During our interview on Monday, Pentagon spokesperson Geoff Morrell described this as a “hugely important question.” “If the attitude of the force is such that they will be less likely to encourage others to join the military after repeal, we need to know that, so we can take measures to deal with that situation,” he said.

AJC’s Cynthia Tucker reports that Senate Armed Services Committee Chairman Carl Levin (D-MI) told a roundtable of reports this morning that he understood why some gay groups found the new DADT questionnaire offensive, admitting that he had his own doubts about “the content of the survey”:

“I can understand the resentment in the gay community.” Levin pointed out, as many gay activists have, that the survey is unprecedented.

Harry Truman didn’t poll the military when he decided to integrate the Armed Forces in 1948. Nor was there a survey when the Pentagon put women on battle ships in 1978. The Navy recently made a decision to allow women in the close quarters of submarines — again without surveying the male submariners.

“It would be really, really, really unacceptable for people in the military to believe it’s a democracy,” Levin said, adding, “I have my doubts about the content of the survey.”

LGBT groups have condemned the survey’s questions, which ask servicemembers to speculate on the sexuality of their colleagues, as “derogatory and insulting,” leading the Pentagon to strongly defend the survey. Yesterday, Pentagon spokesperson Geoff Morrell told me that the survey was “not designed to be offensive to anyone.” “What it was designed to do was to get us the best sense of how the force feels about this issue so we could make adjustments for implementation,” he said. “The intent here is to get the best understanding of how the force feels so that we can take measures to prepare for implementation. That’s what it’s about.”

TPM’s Christina Bellantoni writes that Levin said that while “It’s a very good idea to get the attitude of the troops on things,” it’s important troops do not think they have “veto power” but rather that they understand they are answering the questions to help implement the repeal of DADT. “A lot depends about how the survey is worded … [the Pentagon must] make sure they understand military leadership made a decision,” he said. “[Military leaders are] asking these questions as a way to help us implement this effectively.”

Yesterday, Morrell insisted that the survey would do just that. The survey “is not in any way intended for us to find potential landmines that would cause us not to proceed with a repeal, but rather is to edify us about the kinds of challenges associated with repeal that would need to be dealt with post-repeal,” he said.

Levin is one of the first lawmakers to publicly criticize the questionnaire.

The Texas Republican party platform came under national criticism last month for including planks to criminalize marrying a same-sex couple and reinstating a sodomy ban and now the GOP is fighting back. Texas Republican Party Vice Chair Melinda Fredricks is blaming gay activists for forcing the party’s hand by fighting for their rights:

Although Fredricks admits she cannot speak for the entire Republican Party, she believes the strong statement was a response to an aggressive homosexual political agenda, including an attempt to repeal the Defense of Marriage Act and pass laws forcing churches to consider hiring homosexuals. Fredricks said “a large portion of our base is Christian, and we believe that homosexuality is contrary to what God says is appropriate behavior.

“People feel threatened that their children have to be taught that it’s an equal lifestyle to heterosexuality,” she said. “At the same time, you can’t say people are subhuman. (Homosexuals) still deserve the dignity entitled to them.”

Despite Fredricks’ professed desire to treat gays with dignity, the party platform does quite the opposite. Consider the platform: “Homosexuality must not be presented as an acceptable ‘alternative’ lifestyle in our public education and policy, nor should ‘family’ be redefined to include homosexual ‘couples,’” the party says. “We are opposed to any granting of special legal entitlements, refuse to recognize, or grant special privileges including, but not limited to: marriage between persons of the same sex (regardless of state of origin), custody of children by homosexuals, homosexual partner insurance or retirement benefits.”

The Montana GOP’s platform would also “keep homosexual acts illegal,” but they have yet to blame gays for that provision.

This afternoon, in a wide-ranging discussion about the LGBT community’s reaction to the recently released survey about ‘Dont Ask, Don’t Tell,’ Department of Defense spokesperson Geoff Morrell vehemently pushed back against LGBT groups who have characterized the survey as “derogatory and insulting,” insisting that the survey was designed to inform the Pentagon about how best to repeal the ban against open service.

On Friday, Servicemembers United condemned the survey, saying it “stokes the fires of homophobia by its very design and will only make the Pentagon’s responsibility to subdue homophobia as part of this inevitable policy change even harder” and has since unveiled a petition condemning the survey, which they pegged at “$4.4 million.” Morrell promptly defended the Defense Department’s questionnaire, saying, “We think it would be irresponsible to conduct a survey that did not address these questions,” and suggested that the military might use the results from the survey to make “adjustments to facilities themselves,” prompting many to assume that segregation of forces was under consideration.

In an interview with Morrell this afternoon, the Pentagon spokesman told the Wonk Room that his comments were twisted and taken out of context and vehemently denied that the Defense Department was considering segregating the troops. “So what I said, I used the term ‘facilities adjustments’ and I think people have gotten carried away as to what that could mean,” he began:

MORRELL: So, when I was asked, about the, you know – this is in the context of “why are you even asking these questions?” – well, we’re asking these questions because in our engagements with the force thus far, this has been an area of some concern. Now we need to test it to see if that holds for—if it really reflects the concerns of the force, and which members of the force. Is it older members? Is it younger members? Are they, you know—which ones? And, and then along with this information, the working group will make some recommendations about how to deal with those concerns. It could be, as I said, who knows? This could be dealt with through education programs, through training programs, or it may require “facilities adjustments.” But no one, no one is considering “separate but equal” bathing or living facilities for you know, gay and straight troops. That’s just not ever a consideration.

Q: So that’s off the table.

MORRELL: Absolutely off the table.

Throughout our discussion, Morrell couldn’t understand why LGBT groups would interpret the survey as being offensive to gay people, insisting that the entire questionnaire was designed to minimize disruption once the policy is repealed. “It was not in any way, in any way, not designed to be offensive to anyone. What it was designed to do was to get us the best sense of how the force feels about this issue so we could make adjustments for implementation,” he said. “The intent here is to get the best understanding of how the force feels so that we can take measures to prepare for implementation. That’s what it’s about.” “It is abundantly clear to this working group that their marching orders from the Sec. of Def. are to determine how to implement a repeal of DADT. Their job is not to determine whether or not the force wishes a repeal to take place or not to take place. Their job is to prepare for that inevitability,” he added.

When I asked him how questions like, “Do you currently serve with a male or female Service member you believe to be homosexual?” or “If Don’t Ask, Don’t Tell is repealed, how, if at all, will it affect your willingness to recommend to a family member or close friend that he or she join the military?” got at how best to implement the policy, Morrell explained that they gave the military an idea of hurdles they would need to overcome once the policy is repealed.

Q: OK, so if the survey is bad, and that means if you get a lot of people that don’t like gays, what happens to the policy?

MORRELL: Well we’re gonna have to figure out how we overcome that. Whether it’s through additional training or education or recruiting techniques – I can’t tell you what the working group may or may not come up with. This is not in any way intended for us to find potential landmines that would cause us not to proceed with a repeal, but rather is to edify us about the kinds of challenges associated with repeal that would need to be dealt with post-repeal. I guess what I don’t understand here is why you and some of these others who are writing on this issue can’t take what we say at face value.

“I think it’s just difficult for people to believe that if when the survey comes back, it’s negative – you’re gonna have a fight in the joint chiefs with all those folks who don’t want to do it,” I said, to which Morrell responded:

MORRELL: You’re gonna have to take us at our word on that. But I would say to you this though, Igor. What do you want us to do? Do you want us to put our head in the sand and ignore concerns that have been voiced to us by the force? And so that when we are charged with implementing the repeal, we don’t have any of the information necessary to alleviate or mitigate some of these problems? It is better for us to ask some of these questions up front in as candid a manner as possible, to get as much information as possible, so we are prepared for this eventuality. It would be irresponsible of us to do otherwise.

The Department is also disputing Servicemembers’ claim that it “paid the research firm Westat the outrageous sum of $4.4 million to design and administer an email-based survey,” insisting that the true cost is closer to $850,000.

On Friday, Pentagon spokesman Geoff Morrell pushed back against critics of the recently released DADT survey, and dug the Defense Department in an even bigger hole in the process. Last week, several prominent gay groups criticized the survey for asking the troops to speculate on the sexual orientation of other service members and took umbrage at the implication that gays would pose a problem within the military.

Morrell admitted that the Pentagon outsourced the survey to a private firm without consulting with LGBT groups and suggested that segregating gay and straight troops would not be out of the question once Congress repeals the policy:

Morrell also insisted that the questions with which most critics took the most umbrage — i.e., those related to lifestyle issues like socializing outside of work as well as showering and sharing barracks with openly gay and lesbian colleagues (as though that does not currently occur) — were developed as part of a process within the department and the working group to address the “privacy” issues of concern to heterosexual members of the military. Morrell said, “We think it would be irresponsible to conduct a survey that did not address these questions,” but insisted they were asked to help the military determine what adjustments might be necessary “when DADT is repealed.”

In response to questions from reporters, Morrell clarified that the survey responses could lead the military to conclude that it would “perhaps need adjustments to facilities themselves,” indicating that it is not outside the realm of possibility that, in order to preserve the privacy and modesty of heterosexual service members in group showers and barracks, the military would consider segregating gay and lesbian service members in some way.

When quizzed about the development of the survey questions, Morrell admitted that they didn’t consult with advocacy groups about the design of the survey, leaving that to the professionals at Westat, the private contractor who developed the questions in consultation with the Pentagon and working group.

Several points here. First, it’s unclear that asking soldiers to speculate about the homosexuality of their colleagues and report anecdotal accounts of perceived or actual discomfort with gay troops will inform the military about how best to implement repeal. These questions may reveal how troops perceive their fellow soldiers or the accuracy of their gaydar, but it will say almost nothing about which regulations need to be changed in order to guarantee an orderly transition. If anything, Morrell’s suggestion that facilities may be adjusted to accommodate insecure straight soldiers would only undermine that goal and suggest that military members need only to register their distaste for gays loudly enough to relegate them to separate but equal treatment.

The troops are already forced to live in a whole host of disagreeable conditions and train, sleep, and eat with men and women of all races, religions, and values without detriment to unit cohesion or military effectiveness. That’s because segregating the troops would actually hurt the forces. As General Carl Mundy, commandant of the Marine Corps from 1991 to 1995 and an opponent of a repeal has predicted, segregating the forces “would be absolutely disastrous in the armed forces. …It would destroy any sense of cohesion or teamwork or good order and discipline.” Indeed, none of the 25 nations that have allowed open service provide separate housing, shower, or other common-use facilities for gay and lesbian service members. But the U.S. military seems open to putting them up to a vote and in the process is greatly mishandling a policy change that this administration and an overwhelming majority of Americans — and by some accounts service members — support.

Former Sen. Sam Nunn (D-GA), who actively opposed allowing gays and lesbians to serve openly in the military and later help craft the Don’t Ask, Don’t Tell policy as chairman of the Armed Services Committee, has stated his support for repealing the ban in the clearest, if somewhat conditional terms. In a recent interview with the Sun News Times, Nunn implied that he would support repeal if the Pentagon study concluded that it does not undermine military effectiveness:

NUNN: If they can mitigate the damage and make sure the military can properly administer (the repeal) in a fair way, but in a way that protects unit cohesion and the morale of our forces, then I would favor making whatever changes are necessary...I don’t think any policy like that can last forever. I don’t think it was designed for that. I think it was designed for giving the military and society the chance to make sure we did not damage national security in any way before the policy was changed.

Nunn told reporter Thomas Day that he did not agree with the Democrats’ decision to begin the process of repeal before the Pentagon finished their study, however, placing him somewhat to the right of Defense Secretary Robert Gates and Joint Chief of Staff Chairman Mike Mullen, both of whom gave — at least conditional — support to the Democrats’ approach. Other members of the Joint Chiefs however, have publicly condemned effort to attach repeal legislation to the defense authorization bill.

Nunn had previously suggested that he was open to reviewing the policy in 2008. Then, he told reporters that “times change” and it is now time to reconsider the ban. When “fifteen years go by on any personnel policy,” he said, “it’s appropriate to take another look at it — see how it’s working, ask the hard questions, hear from the military.”

In February, Colin Powell — another strong proponent of DADT in the 1990s — also reversed his position and came out against the policy, noting that “attitudes and circumstances have changed.”

The Palm Center has released one of the Don’t Ask, Don’t Tell surveys distributed to some 400,000 servicemembers to gauge their reaction to repealing the policy. Yesterday, Defense Secretary Robert Gates has described the questionnaires as “very important” to moving forward with repeal and promised that the results would “help us prepare better to implement those changes when and if the law is changed.”

At the outset, the survey sounded benign enough. But looking at the actual questions, I don’t see how asking the troops to speculate about the orientation of their fellow members would help the military “prepare” to repeal the policy effectively. Rather, the tone of questions — some of which are reproduced below — suggest the military is operating under two very troubling assumption: 1) open homosexuality would affect military performance and 2) gay people themselves are problematic or offend straight people.

The questions are not only hetero-centric (in that they assume that the servicemember is straight) but they also leave the impression that the military is on some sort of witch hunt.

Consider these:

- Do you currently serve with a male or female Service member you believe to be homosexual?

- In the unit where you had a leader you believed to be gay or lesbian, about how many other unit members also believed the
leader to be gay or lesbian?…How would you rate that unit’s … a. Ability to work together? … b. Morale?…c. Performance?

- If Don’t Ask, Don’t Tell is repealed and you are working with a Service member in your immediate unit who has said he or
she is gay or lesbian, how, if at all, would it affect your immediate unit’s effectiveness at completing its mission. . .

- If Don’t Ask, Don’t Tell is repealed, how, if at all, will it affect your willingness to recommend to a family member or close friend that he or she join the military?

- Have you shared a room, berth or field tent with a Service member you believed to be homosexual?

- Have you been assigned to share bath facilities with an open bay shower that is also used by a Service member you
believed to be homosexual?

- If Don’t Ask, Don’t Tell is repealed and a gay or lesbian Service member attended a military social function with a same-sex partner, which are you most likely to do?

Gates has encouraged gays and lesbians to participate in the survey, but the tone of the questions will likely turn many closeted servicemembers away, potentially slanting and skewing the results. To be sure, there is no better way to ask these questions. In all of the choices, the servicemember has the option of selecting “no effect,” and have space to express very positive opinions of gay members. But the very fact that the military has decided to poll this issue and the Secretary has put some much weight in their answers, gives soldiers the impression that their fellow gay members pose a problem and that they can still preserve the DADT policy. After all, what’s stopping some homophobic troops from gaming the survey and reporting all kinds of horrible experiences — and all under the cloak of anonymity?

Had the troops taken surveys about integrating African Americans or opening up combat opportunities for women and military leaders paid attention to them, those things would never have happened and reading these questions, one gets the impression that the military is pulling out all the stops to keep the policy in place.

Reading through U.S. district judge Joseph Tauro’s decision in yesterday’s DOMA case, I couldn’t help but think that certain parts of his ruling would put a smile on the faces Virginia Attorney General Ken Cuccinelli and the other conservatives who are claiming that the new health care law represents an unprecedented expansion of federal power and undermines the tenth amendment of the constitution.

First, Tauro concludes that Section 3 is unconstitutional because there it forces the state of Massachusetts to “violate the equal protection rights of its citizens” embodied in the Due Process Clause of the Fifth Amendment for no rational basis. Fair enough. But then he writes that DOMA encroaches on “a historically entrenched tradition of federal reliance on state marital status determination“:

State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution. Indeed, the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution. And, as a consequence of continuous local control over marital status determinations, what developed was a checkerboard of rules and restrictions on the subject that varied widely from state to state, evolving throughout American history. Despite the complexity of this approach, prior to DOMA, every effort to establish a national definition of marriage met failure, largely because politicians fought to guard …The history of the regulation of marital status determinations therefore suggests that this area of concern is an attribute of state sovereignty, which is “truly local” in character….And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government…The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.

Compare that to Cuccinelli’s challenge to the health care law:

The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs’ respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty….By imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution.

The Act also represents an unprecedented encroachment on the sovereignty of the states. For example, it requires that Florida vastly broaden its Medicaid eligibility….From the beginning of Medicaid until passage of the Act, the states were given considerable discretion to implement and operate their respective optional Medicaid programs in accordance with state-specific designs regarding eligibility, enrollment, and administration, so long as the programs met broad federal requirements….

There are plenty of differences between marriage laws and health care. The federal government has not traditionally weighed in on who can marry who, but state and federal governments have long played a role in health regulation. Medicaid, for example, is explicitly set up as a federal/state partnership where the two governments work together to provide health care to the poor. Nevertheless, Tauro’s suggestion that a history of federal silence on an issue may prevent Congress from weighing in on that issue bears far more resemblance to Cuccinelli’s reasoning than it does to the Supreme Court’s Commerce Clause cases. Jack M. Balkin has much more on Tauro’s 10th amendment argument here.

Meanwhile, the Department of Justice is expected to appeal the ruling and are currently “reviewing the decision.”

Last night, the Presbyterian church voted to delay a decision that would have redefined marriage from “a man and a woman” to “two people” but approved language to ordain noncelibate gays and lesbians. The AP reports that “the late-night decision to table the proposal and subject it to two more years of study caught many delegates at the denomination’s gathering at the Minneapolis Convention Center by surprise, and there was a stunned silence as delegates absorbed the action.”

The convention did approve the following change, which will become final once it’s reaffirmed by a majority of the Church’s presbyteries:

b. Those who are called to office in the church are to lead a life in obedience to Scripture and in conformity to the historic confessional standards of the church. Among these standards is the requirement to live either in fidelity within the covenant of marriage between a man and a woman (W-4.9001), or chastity in singleness. Persons refusing to repent of any self-acknowledged practice which the confessions call sin shall not be ordained and/or installed as deacons, elders, or ministers of the Word and Sacrament. Standards for ordained service reflect the church’s desire to submit joyfully to the Lordship of Jesus Christ in all aspects of life (G-1.0000). The governing body responsible for ordination and/or installation (G.14.0240; G-14.0450) shall examine each candidate’s calling, gifts, preparation, and suitability for the responsibilities of office. The examination shall include, but not be limited to, a determination of the candidate’s ability and commitment to fulfill all requirements as expressed in the constitutional questions for ordination and installation (W-4.4003). Governing bodies shall be guided by Scripture and the confessions in applying standards to individual candidates.”

Earlier, the Church’s Special Committee to Study Issues of Civil Union and Christian Marriage had issued a report recognized that civil unions are not equivalent to marriage, but recommended that the issue of re-defining the term be studied further. “We agree that Christ calls all persons into fellowship with him, regardless of race, sex, occupation, ethnic origin, sexual orientation, or any other worldly condition, and that congregations are to welcome all persons who respond in trust and obedience to God’s grace in Jesus Christ and who desire to become part of the membership and mission of Christ’s church,” the report noted.

The Presbyterian Church has about 2 million Americans and would have been the largest Christian congregation to accept same-sex marriages.

Secretary of Defense Robert Gates described the 400,000 surveys emailed to active and reserve troops about “Don’t Ask, Don’t Tell” as “very important,” telling reporters at a briefing this afternoon that the he personally “suggested that they double the size of the sample.” “The original proposal was to sample 100,000 active troops and 100,000 in the reserve component and I strongly suggested that they double the size of the sample,” Gates said. “I wanted a significant percentage of the force to have an opportunity to offer their views on this.”

He stressed that “it is very important for us to understand from our men and women in uniform the challenges that they see” and explained that the survey would “help us prepare better to implement those changes when and if the law is changed.” Gates also pushed back against SLDN’s warnings that LGB service members could inadvertently out themselves by taking part in the questionnaire and promised that the results would remain confidential:

GATES: I would say that this survey is a very important element of this effort, in part because while General Ham and General counsel J. Johnson have talked to thousands of troops and dozens of military facilities, and we have gone several tens of thousands of comments and views by email in response to the request for people’s thoughts on this, this size sampling is obviously the most significant element of getting the views of the troops…I am aware there is at least one group that has suggested that gays and lesbians in the service not fill in the report….I strongly encourage gays and lesbians who are in the military to fill all the forms. We have organized this in a way to protect their privacy and confidentiality of their responses through a third-party, and it is important that we hear from them as well as everybody else.

Watch it:

Joint Chiefs of Staff Chairman Admiral Mike Mullen added that the survey is “going to be able to give us objective information with respect to the responses from the people that we care about the most,” but also described DADT as “a law that needs to be changed.” “It really needs to be changed from that perspective.”

Many repeal advocates have questioned the rationale behind subjecting the policy and the rights of gays and lesbians to a poll. It’s also unclear why the survey asks soldiers about whether the policy should be repealed, since the Pentagon has insisted since February that the study would focus on how, not whether, the policy should be repealed.

Change.org’s Michael Jones notes that the Presbyterian Church may soon become the largest U.S. Christian denomination to permit same-sex marriage. Church leaders meeting for their national convention in Minneapolis this week are preparing to vote to change the definition of “marriage” in their “Directory for Worship” from between “a man and a woman” to between “two people.”

The vote comes after the Special Committee to Study Issues of Civil Union and Christian Marriage issued a report recognizing that civil unions are not equivalent to marriage and expressed concern for the children of gay families, despite marital status. The full Committee of the General Assembly voted 47-8-2 to change the definition and it will come before the full General Assembly at around 7:30pm today.

Below are some of the proposed changes:

“Marriage is a gift God has given to all humankind for the well-being of the entire human family. Marriage is a civil contract between a woman and a man. For Christians marriage is a covenant through which a man and a woman two people are called to live out together before God their lives of discipleship. In a service of Christian marriage a lifelong commitment is made by a woman and a man the couple to each other, publicly witnessed and acknowledged by the community of faith.”

The document also argues that “to exclude an entire population of the church, namely same-gender couples, from the privilege of Christian marriage denies these persons the pastoral care they desire for fulfilling their service to God“:

While it has always been the case that persons authorized to conduct services of Christian marriage may not be required to marry a couple against their conscience and better judgment (Book of Order, W-4.9002b), to bind the conscience of ministers and commissioned lay pastors by forbidding them to conduct a legal marriage that they have prayerfully considered would be an unjustified interference in the exercise of pastoral care. Excluding same-gender couples from the privilege of Christian marriage where it is legally authorized undermines the peace, unity, and purity of the church. Section W-4.9000 was written and adopted before any state created the possibility of marriage between two persons of the same gender. The call of the prophets and the Word of God summon us to declare the holiness of the gift of marriage for all faithful couples, regardless of gender.

If the change is approved by the General Assembly, it will then go to the 173 regional chapters, which will consider the question over the next year. Once a majority vote in favor of the new definition, it will become part of the Presbyterian constitution. Currently, only the Unitarian Universalists, the United Church of Christ, and some Quaker churches recognize same-sex marriages.

Yesterday, the Pentagon emailed 400,000 surveys to American troops seeking their views on the impact of repealing DADT, but some advocacy organizations are already warning gay and lesbian members against filling out the questionnaire. Servicemembers Legal Defense Network (SLDN) has issued the following release:

A number of service members have contacted SLDN to seek guidance on surveys concerning the repeal of ‘Don’t Ask, Don’t Tell — the discriminatory law barring gay and lesbian service members from serving with integrity. At this time SLDN cannot recommend that lesbian, gay, or bisexual service members participate in any survey being administered by the Department of Defense, the Pentagon Working Group, or any third-party contractors. While the surveys are apparently designed to protect the individual’s privacy, there is no guarantee of privacy and DOD has not agreed to provide immunity to service members whose privacy may be inadvertently violated or who inadvertently outs himself or herself. If a service member still wishes to participate, he or she should only do so in a manner that does not reveal sexual orientation.

According to the American Forces Press Service, “troops can log into http://www.defense.gov/dadt with their common access card to provide their input. This site is not confidential; however, directions from the site, as well as in the survey, are provided for members who wish to continue a ‘confidential dialogue’ with non-Defense Department members of the working group…[o]nce servicemembers enter the confidential site, they will be given an untraceable PIN number they then can use to log on from any computer.”

In May, Joe Mirabella from the Bilerico Project pointed out that the entire idea of surveying troops anonymously (or not completely anonymously) could “invite the worst kind of hate, anonymous homophobia.” “I’ve had the opportunity to write for a variety of sources. When I write for sites with a broad audience, anonymous comments can be downright hateful. On one blog I write for, I have a pack of 5 or 6 potential people…who takes every opportunity they can to fill my comment space with anti-gay hate.” Something very similar could happen with this survey, particularly if gay and lesbian troops decide not to participate in it. But deliberately silencing LGB troops could very well distort the entire study and provide ammunition for those who seek to maintain the policy.

From Washington Blade’s Chris Johnson comes word that Sen. Richard Lugar (R-IN) “won’t support an attempt to remove the language from a larger defense bill“:

U.S. Sen. Richard Lugar (R-IN) told the Blade last week that he isn’t concerned about the “Don’t Ask, Don’t Tell” repeal language in the fiscal year 2011 defense authorization bill and wouldn’t support an effort to rid the legislation of the provision. Asked whether he would support a substitute amendment or a motion to strike, Lugar replied, “No. I would just leave it as it is.”

Lugar said he would “presume” that he would vote against any filibuster of the defense bill as a whole, but expressed concern about the legislation being used as a vehicle for other costly programs unrelated to “Don’t Ask, Don’t Tell.” “The defense bill, as it stands, seems to me to be a good piece of legislation, but I think the issue was the additions that were not paid for in various other ways,” Lugar said.

The filibuster threat was initially levied by Sens. John McCain (R-AZ) and Sen. Roger Wicker (R-MS) but was apparently withdrawn in favor of a so-called poison pill amendment that would require all of the service chiefs — rather than just Gates, Mullen, and Obama — to authorize the Pentagon’s review of the DADT policy. McCain’s spokesperson admitted that the Senator is “not filibustering the bill,” but refused to say if he would offer an amendment to strike the repeal. “I think it’s a bit early. Sen. McCain is still deciding on the amendments he plans to introduce.” Last month, however, McCain complained that the certification process it excluded all of the service chiefs, some of whom have written to him to register their opposition to overturning the policy. “It does not include the four service chiefs….it does not sir. I’ll show it to you in writing,” he said at a town hall meeting. Substituting or striking the DADT amendment would require 51 votes, while a filibuster would only call for 41.

Meanwhile, today, the Pentagon began emailing troops a survey of more than 100 questions seeking their views on the impact of repealing DADT. The survey will be sent to 200,000 active duty troops and ask “about such issues as how unit morale or readiness might be affected if a commander is believed to be gay or lesbian; the need to maintain personal standards of conduct; and how repeal might affect willingness to serve in the military.” In total, more than 400,000 troops will receive the survey. The answers will kept confidential, however, leading some to worry if troops will use it as an opportunity to bash their gay colleagues.

Significantly, foreign militaries that allow gays to serve openly in their forces — like those of Great Britain, Canada, and Israel — have completely integrated their forces and have not constructed separate housing, shower, or other common-use facilities for gay and lesbian service members.

Calling civil unions “essentially marriage by another name,” Hawaii Governor Lisa Lingle (R) announced that she is vetoing legislation extending civil unions to same sex and opposite sex couples. The law passed the Hawaii House rather unexpectedly back in April and LGBT advocates had spent the last several months lobbying the governor for her support. In a press conference yesterday, Lingle stressed that she was not qualified to make the decision and said that the rights of gay people should be put to a vote by the majority:

LINGLE: I am vetoing this bill because I have become convinced that this issue is of such significant societal importance that it deserves to be decided directly by all the people of Hawaii. The subject of this legislation has touched the hearts and minds of our citizens as no other social issue of our day. It would be a mistake to allow a decision of this magnitude to be made by one individual or a small group of elected officials. And while ours is a system of representative government it also is one that recognizes that, from time to time, there are issues that require the reflection, collective wisdom and consent of the people and reserves to them the right to directly decide those matters. This is one such issue.

Watch it:

Lingle’s statements are somewhat confounding, however, since the civil union legislation is not the same as marriage nor does it actually re-define marriage. Unlike marriage, civil unions are only recognized in the state in which they are performed and couples do not carry the benefits of civil unions across state lines. Couples united in a civil union have no access to the more than 1,000 federal rights, which, incidentally are still denied to same-sex married couples under the Defense of Marriage Act (DOMA). Currently, five states have civil union laws and five, plus DC recognize same-sex marriages.

Lambda Legal and the American Civil Liberties Union of Hawaii have released a joint statement saying they plan to sue the state. “This was a sad surrender to political expediency that does not support business or family interests, but damages them,” said Jennifer Pizer, National Marriage Project Director for Lambda Legal. “We would have preferred to see couples win fair treatment through the political branch rather than having to pursue legal action. However, we’re still ready to do what’s necessary so our clients can protect their loved ones.”

Hawaii has been a battleground for gay rights since the 1990s, when the Hawaii Supreme Court declared that the state “could not bar same-sex couples from marrying without violating its own equal protection statutes.” The decision, the first of its kind, led to a national backlash against gay equality and led President Clinton to sign DOMA. By 1998, Hawaii voters approved the nation’s first ‘defense of marriage’ constitutional amendment with 78% of the vote. It wasn’t until 2001 that the first civil union bill was introduced in the Hawaii legislature.

The Senate passed the bill last January by a veto-proof majority of 18-7. The House passed the bill in April by a 31-20 vote, which was just three votes short of the two-thirds that would be needed for an override.

The Ugandan parliament is considering legislation that would impose the death penalty or life imprisonment for some homosexual acts (which are already illegal), require people to report every LGBT individual they know, and criminalize so-called LGBT advocacy. Earlier this year, responding to worldwide condemnation, Ugandan President Yoweri Museveni “has encouraged his ruling National Resistance Movement Party to overturn the death sentence provision” and the Ugandan Cabinet is reportedlymaking changes to the legislation.

The bill may be in limbo but the violence that it has stirred up, has not abated. Jim Burroway of Box Turtle Bulletin is reporting that “the body of a Ugandan gay youth activist has been discovered decapitated and dismembered on a remote farm.” “The activist was a volunteer for the LGBT advocacy group Integrity Uganda“:

Judith Nabakooba, a police spokesperson, identified the head as that of Pasikali Kashusbe, one of the workers on Kigggundu’s farm and a member of Integrity Uganda. Pasikali and his partner Abbey are youth workers with Integrity Uganda charged with the responsibility of mobilising young LGBT people in activities which build community capacity to face up to the challenge of homophobia, especially in the area of attitude change and care through drama and sports activities.

According to the police, a mutilated torso which was earlier in the week discovered in Kabuuma Zone, about half a kilometre away from Kiggundu’s farm was probably Pasikali’s. The torso was described as belonging to a young man and had no genitals.

Pasikali went missing over three and half weeks ago when the country was celebrating Uganda Martyrs Day. All efforts by his partner Abbey and other family members to find him had been fruitless.

Bishop Christopher Senyonjo, Chairperson of Integrity Uganda lamented the murder of this young man as ‘absurd’ adding that, ‘clearly, the values of tolerance and social inclusion are sadly being sacrificed on the altar of state ignorance, ineptness and good old colonial stupidity’.

The anti-gay push in Uganda was inspired — and promoted — by the religious far right in the United States. In March 2009, three American evangelicals — whose anti-gay teachings have been widely discredited — went to Uganda and preached about the “dark agenda” of LGBT individuals. Just one month later, Ugandan lawmaker David Bahati introduced the “Anti-Homosexuality Bill.”

During a recent event at the Center for American Progress, Bishop Christopher Senyonjo, a retired Anglican bishop from Uganda and Chaplain of Integrity Uganda, criticized American evangelicals for preaching intolerance against the approximately half million gay and lesbians in Uganda. “Christian groups coming from here — that is to say, the United States — who are making it very difficult by preaching a gospel of hatred to the LGBT people.” “One wonders, if God — whom I do, many of us, I say, do believe — that God is a god of love, but some people are preaching a gospel of hating a certain group of people,” he said.

CAP Visiting Senior Fellow Bishop Gene Robinson remarked that “when violence occurs, or this legislation, like the Bahati bill occurs, you know when we confront them here in this country about that, they say, “Oh my goodness! That was never our intention!” Well, when you set off that kind of sparks you should not be surprised when it turns into a wildfire.”

June may be ‘the month of Pride’ but this year the Cincinnati parade has coincided with July 4th, leading some conservative leaders to warn residents against traveling Downtown for the traditional holiday celebrations:

“We think its not right for them to invade the Fourth of July, and we’re trying to warn people that if they do go downtown they may be exposed to some deviant behavior,” Phil Burress, president of Citizens for Community Values. “Everything from sex in the streets to topless women.”…”It bothers me that they’re going downtown on the Fourth of July, and it has nothing to do with the July celebration. Nothing,” Burress said.

Parade organizers point out that “Ninety-five percent of our parade entries are church organizations, student and university groups, political rights groups.” “They never want to focus on the reality of the GLBT community and the couples who have been together for 10, 15, 20 years,” parade organizer George Crawford said.

In fact, Crawford sees the date and the support the parade has drawn from local businesses as measure of how far the city grown in accepting the gay community. The last Downtown event was in 1995, “and then there were no gay pride parades for five years.” “From 1993 until 2004, an amendment to the city charter prohibited city government from treating sexual orientation as a protected class.” This year, however, business leaders hung rainbow flags in their store fronts and promoted the event. “We invite people to come Downtown and see how much it’s changed,” Crawford said.