This morning, Lt. Dan Choi denounced White House senior adviser Valerie Jarrett for suggesting that those who urge the administration not to appeal a recent federal court decision overturning Don’t Ask, Don’t Tell don’t “actually understand” President Obama’s duty to defend existing laws. “I’m so absolutely upset at the things she could be saying at this moment,” he began. “Valerie Jarrett said that gay people, some of us should try to understand the politics and the situation and that we are a nation of laws. Well we understand that, we don’t need a lecture from Valerie Jarrett on that.”

This afternoon, Jarrett appeared on CNN’s The Situation Room and doubled down on her argument that the Justice Department must appeal the ruling, insisted that Obama can’t change the policy through executive order and falsely suggested that Obama has already admitted that the policy is unconstitutional:

JARRETT: [Obama] can’t simply sign an executive order to revoke it or he would have. So we’re asking Congress to repeal it. And until then, the Justice Department has no choice but to defend the laws that are on the books and that’s what the Justice Department is doing. But we want it to end and end as soon as possible.

BLITZER: One legal scholar suggested today that perhaps the president could go ahead do what he needs to do, but at the same time make it clear to everyone that he thinks this law is unconstitutional.

JARRETT: He has done that. He did that as recently as last week at a town hall meeting. He said that he thinks this law should be absolutely repealed. He does not believe in this law. [...]

BLITZER: Will you push for repealing Don’t Ask Don’t Tell during the lame duck session?

JARRETT: I know the president has said he wants it repealed as quickly as possible….we share the frustration of people who think it should be done right away. We wish it had been done sooner. But we are determined to get it done.

BLITZER: If Dan Choi were here what would you say to him?

JARRETT: I appreciate his frustration. I share his frustration and I understand that for somebody who has served proudly in the military that he thinks this is an outrage. We think this is an outrage, too. And we think that focus should be directed at Congress. Because Congress is the one that passed it in the first place. Congress is the one who should repeal it.

Watch it:

LGBT advocates have argued that Obama could also use his stop-loss authority to prevent the military from discharging individuals based on their sexual orientation and have claimed that the White House does not have to appeal the ruling if he believes that it is unconstitutional.

This morning, Ted Olson — former Solicitor General under President George W. Bush — agreed with this emerging consensus, saying “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.’”

Significantly, Jarrett also refused to say that Obama would lobby for repeal during the lame duck session and incorrectly suggested that he had said that the law is unconstitutional during the MTV town hall. At that event, Obama dodged the question and instead reiterated his promise that “This policy will end and it will end on my watch.”

Earlier today, Marc Ambidner suggested that the Pentagon — which on Tuesday sent a guidance to recruiters instructing them to accept gay and lesbian enrollees — may adopt a more lenient approach towards enforcing Don’t Ask, Don’t Tell following the 9th Circuit Court of Appeals’ temporary stay of the policy. At a briefing this afternoon, officials hinted that they may be pursing a softer approach towards the ban, telling reporters that discharges will now require the approval of the “service branch secretary.” In other words, only five people in the entire Department of Defense will be able to discharge a gay soldier under the policy:

Discharges under the military’s ”Don’t Ask, Don’t Tell” policy will now take the approval of the service branch secretary, and only in consultation with the defense department general counsel and the undersecretary of defense for personnel and readiness, according to a pair of memoranda issued by senior military leadership today.

Until further notice, pursuant to a memorandum from Defense Secretary Robert Gates and a follow-up memorandum from Undersecretary of Defense for Personnel and Readiness Clifford Stanley, no service member can be discharged under DADT without the ”personal approval of the secretary of the military department concerned, and only in coordination with me and the General Counsel of the Department of Defense.”

A senior defense department lawyer briefed reporters on Thursday afternoon about the memos, saying, ”These two memos are primarily in reaction to … the temporary stay last night. We are clearly in a legally uncertain territory.”

The temporary stay will likely remain in effect until after October 25, when the court decides whether to leave it in place pending an appeal of Judge Virginia Phillips’ ruling that the policy is unconstitutional.

Read the new memorandum HERE.

This morning, White House senior adviser Valerie Jarrett responded to the Ninth Circuit Court of Appeals’ decision to temporary stay a lower judge’s injunction of Don’t Ask, Don’t Tell, insisting that the administration had a duty to defend the policy. “Until Congress repeals it, the Justice Department is doing what it is required to do and that is, to defend the laws of the land,” Jarrett said. “But I want to be very clear that the president thinks it is time for the policy to end, and that’s what he intends to ask Congress to do”:

JARRETT: You know what, the Justice Department is required to defend the law of the land. Believe me, we wish there were another way because the President has been so clear. And I think there are many members of the gay community who actually understand this and who are working with us to try to put pressure on Congress to repeal it. It’s clear that the vast majority of American people think that it should not be the law. And we are determined to have Congress revoke it. But we have to go through that orderly process.

Watch it:

It’s not just those in the gay community that don’t “actually understand” the White House’s insistence on mischaracterizing its duty to defend existing laws. As Ted Olson — former Solicitor General under President George W. Bush — explains, “it happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law.” “I don’t know what is going through the [Obama] administration’s thought process on ‘don’t ask, don’t tell,’” Olson said. “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.’”

But the White House has refused to say if President Obama still believes that the law is constitutional — as he told Anderson Cooper earlier this year — and has shied away from issuing an executive order placing a moratorium on future discharges. Meanwhile, a new CBS News poll finds that 56 percent of Americans favor allowing gays and lesbians to serve openly, while 31 percent oppose letting them do so.

Moments ago, the Ninth Circuit Court of Appeals temporarily granted the government’s request to stay a federal district court’s injunction of Don’t Ask, Don’t Tell, potentially allowing the Pentagon to again ban gays and lesbians from serving openly in the armed forces. From the court:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal. The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010. To expedite consideration of the motion, no reply shall be filed.

The ruling comes after the government announced on Tuesday that recruiters had to accept gay soldiers as it was still trying — and ultimately failed — to secure a stay from U.S. District Court Judge Virginia Phillips. It filed this request for an emergency stay at approximately 11:30 this morning. The Pentagon will likely issue another guidance to bar gay recruits from enrolling. As Metro Weekly’s Chris Geidner explains:

This is not, however, a stay of the order that will last through the appeal. This is only a temporary stay granted through the time when the Ninth Circuit can decide — sometime after the Oct. 25 deadline given to the LCR attorneys to respond to the stay request — whether to issue a stay pending the outcome of the appeal.

If a stay is granted pending the appeal, though, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.

Attorneys for the Log Cabin Republicans, the plaintiffs in the case, had filed their opposition to the DOJ’s stay request, noting, “Each argument that the government asserts as a basis for a stay has already been raised to the district court, which rejected them all – not cursorily, or in passing at an oral argument, but in extensive reasoned opinions at multiple stages of the proceedings below.” (H/T: Chris Geidner)

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John Aravosis points out that the Pentagon has confirmed that “no disciplinary problems or mass-resignations have been reported” since a Judge Virginia Phillips announced her injunction against enforcing the old Don’t Ask, Don’t Tell policy. The finding undermines the apocalyptic predictions of DADT supporters and the government’s concerns that lifting the ban would have “enormous consequences,” but for Nathaniel Frank – author of Unfriendly Fire — it’s to be expected.

As Frank pointed out to me in an email, “what all this reveals is a military and political leadership that’s out of touch with the reality on the ground”:

Poll after poll shows that a majority of troops already know or believe there are gays in their units, which means gays are not only serving, but serving openly. Judge Phillips also found that the military has been letting out gays go to war because of personnel needs. Let me repeat that: open gays are already there. So how can the Pentagon argue that letting open gays serve will have ‘enormous consequences’ if it’s already been happening for years?

As Frank summarizes here, poll after poll has already found that a growing number of servicemembers have no problem serving with openly gay or lesbian troops. And if the Pentagon Working Group comes to a dramatically different conclusion — “that openly gay service would be disruptive and would take many months to implement — it’s going to make the Pentagon look pretty darn silly,” Frank concluded. Their report is scheduled to be released on December 1st.

Following California District Court Judge Virginia Phillips’ official rejection of the government’s request to stay her injunction against enforcing Don’t Ask, Don’t Tell, the Department of Justice has filed an emergency stay request with the 9th Circuit Court of Appeals, requesting that “the Court enter an administrative stay by today October 20, 2010, pending this Court’s resolution of the government’s motion for a stay pending appeal, which would maintain the status quo that prevailed before the district court’s decision while the Court considers the government’s stay motion.”

The 25-page stay request argues, among other things, that the temporary injunction, “if not stayed immediately,” “risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.” Interestingly, DOJ lists at least three different harms, but doesn’t note a single specific instance in which the Pentagon has received a complaint about mass resignations or disruption in the time since it has complied with Philips’ order and stopped implementing the policy:

1. DADT is in the public interest: “Because an Act of Congress is deemed to be “in itself a declaration of public interest and policy which should be persuasive,”…ending “Don’t Ask, Don’t Tell” in this manner is itself irreparable harm.”

2. Military not ready for repeal: “The Court should defer to the considered judgment of Congress and the most senior leaders of the military that a repeal of § 654 and its implementing regulations should be done in an orderly manner to be successful, rather than result from an immediate court- ordered cessation of the statutory policy.”

3. The injunction is causing “confusion”: “Enjoining the operation of the statute before the appeal is concluded would create tremendous uncertainty about the status of servicemembers who may reveal their sexual orientation in reliance on the district court’s decision and injunction.”

Meanwhile, Voice of America reported yesterday that despite DOJ’s warnings, “A Pentagon spokesman said Monday that no disciplinary problems or mass-resignations have been reported since last week’s judicial injunction.”

Earlier tonight, California District Court Judge Virginia Phillips officially rejected the government’s request to stay her injunction against enforcing Don’t Ask, Don’t Tell, arguing that the defendants “have not shown” “a likelihood they will suffer irreparable harm.” Phillips had issued her injunction last week, after ruling that the policy violated the due process clause and the First Amendment in September.

“[T]he injunction requires Defendants to cease investigating and discharging servicemembers pursuant to the Act. It does not affect Defendants’ ability to revise their policies and regulations nor to develop training and education programs, the only activities specifically mentioned in the Stanley Declaration,” Phillips wrote, referring to a memo from Clifford Stanley, undersecretary of defense for personnel and readiness, who said the injunction would create a burden for the military. Phillips similarly dismissed a Rolling Stone interview with President Obama, which the government also submitted, calling it “hearsay.”

“The public has an interest in military readiness, unit cohesion, and the preservation of fundamental constitutional rights,” she wrote. “While Defendants’ interests in preventing the status quo and enforcing its laws are important, these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights.”

The Pentagon is complying by the orders of the injunction while it’s in effect and announced earlier today that it has issued new guidance instructing recruiters to accept gay and lesbian applicants. The Department of Justice is now expected to seek a stay on the injunction before the ninth circuit court of appeals.

In an effort to comply with Judge Virginia Phillips’ injunction against enforcing Don’t Ask, Don’t Tell, the Department of Defense is instructing recruiters to accept gay and lesbian applicants. Pentagon spokeswoman Cynthia Smith tells the AP that “top-level guidance has been issued to recruiting commands informing them that the military’s “don’t ask, don’t tell” rule has been suspended for now,” but recruiters “also have been told to inform potential recruits that the moratorium could be reversed at any point.”

The Atlantic’s Marc Ambinder has more:

One is that the guidance given to recruiters is based on the status of legal process, and that gay recruits are being told that if the ban on gays in the military is upheld, their status might be revoked in the future. Two: in the Navy, at least, recruits are being processed on “delayed entry” status, which places them on inactive reserve status for up to a year.

Three, each service branch is applying the guidance, which was offered by the Pentagon’s general counsel, differently.

Four, this does not mean that it is safe for gay soldiers to come out. Indeed, if they do, and a stay is enforced or the case is thrown out, they can be held responsible for their declarations during this intermediary period. Still — today is a point of demarcation.

Servicemembers Legal Defense Network (SLDN) is warning gay members against coming out, however, since “a higher court is likely to issue a hold on the injunction by Judge Phillips very soon.” The Department of Defense “is awaiting a ruling from Phillips on the government’s request to stay the injunction pending the government’s appeal of the case to the U.S. Court of Appeals for the Ninth Circuit. The hearing on the stay request, held Monday afternoon, ended with Phillips giving a tentative ruling against granting the stay.”

Responding to today’s announcement, Lt. Dan Choi — who was discharged under the policy in 2010 — tweeted that he will try to enlist at the Times Square recruiting station in New York City, telling the Advocate Magazine, “[a]s we say in the military, this is a target of opportunity. It’s an opportunity for me to serve in whatever capacity that I can. And I’m going to go try to do that.”

Last night, federal district Judge Virginia Phillips indicated that she’s unlikely to grant the federal government’s request to stay her injunction barring the Pentagon from enforcing Don’t Ask, Don’t Tell. As Metro Weekly’s Chris Geidner explained, “This is the worst of all worlds for the Department of Justice attorneys arguing for the stay, because Phillips has more or less said that she doesn’t plan on giving them the stay while at the same time not issuing a ruling that is capable of being appealed to the U.S. Court of Appeals for the Ninth Circuit.” “Until Phillips issues an official denial of the request for a stay, in other words, DOJ just has to sit and wait.” If the Ninth Circuit denies the stay request, the government is prepared to petition the Supreme Court.

But in court on Monday, Phillips appeared less than impressed with the government’s arguments:

“The request is untimely,” she said, noting that the government had several weeks to present evidence about the effects that a worldwide permanent injunction could have on the military. “Neither at trial, when the government declined to put on any evidence, nor during the time it was allowed in a briefing schedule, did the government put on substantive evidence as to the form of the injunction,” she said.

She criticized evidence the government had advanced. “The first exhibit is a Rolling Stone article,” she said. “I hardly need to say more than that.”

She also found fault with the government’s introduction of declaration by Clifford Stanley, undersecretary of defense for personnel and readiness, who said the injunction would create a burden for the military. She said the declaration was “too conclusory to be of much assistance in the defense to meet the legal burden in obtaining a stay.”

The big problem for DOJ is that the longer the government has to wait for a court to stay Phillips’ injunction, the weaker their argument becomes about the importance of DADT in maintaining military readiness and other national priorities. Defense Robert Gates has warned that ending the ban through the court would have “enormous consequences for our troops,” but the Pentagon has yet to identify any negative impact from its temporary suspension of the ban. The Palm Center has launched an entire website to track any potential consequences and has submitted a Freedom of Information Act request for all documentation related to the suspension of DADT.

For more on the uncertainly surrounding Don’t Ask, Don’t Tell, read yesterday’s Progress Report.

During an appearance on the Family Research Council’s Washington Watch Weekly radio program on Friday, Rep. Louie Gohmert (R-TX) likened homosexuality to ‘adultery’ and suggested that gay people wouldn’t be able to control their hormones if allowed to serve openly in the armed forces:

GOHMERT: Some people say, “Where is homosexuality in violation of the Ten Commandments?” Well it’s adultery, it’s sexual relations outside of marriage, a man and a woman ….. specifically for the military, when anyone, whether their homosexual or heterosexual, cannot control their hormones to the point that they are distraction[s] to the good order and discipline of the military, then they need to be removed from the military. [...]

PERKINS: What happens if the courts or even congress — that is currently debating this issue — changes the policy? Will that not ultimately lead, if you have to say homosexual behavior is acceptable — would not then the policies have to be changed or the laws, rather changed about heterosexual immorality?

GOHMERT: Well of course it would.

Listen:

These comments only add to Gohmert’s long list of homophobic remarks. Last year, Gohmert called the DADT repeal “perverse…social experimentation” and said that soldiers are being “held hostage by a sociological attack.” His rant included a bizarre argument that the Matthew Shepard hate crimes bill would lead to a legalization of necrophilia, pedophilia, and bestiality and said that taking away “moral teaching in America” would create a situation similar to that of Germany in the “1920′s and 1930′s” when a “little guy with a mustache” took over.

On a substantive note, as CAP’s Larry Korb points out, DoD should implement a broad code of social conduct that covers all personal relationships and behavior that undermine good order and discipline, whether they’re the fault of gay or straight soldiers. (H/T: Good As You)

During a conference call hosted by the National LGBT Bar Association about the government’s recent decision to appeal a recent federal court decision which barred the military from enforcing Don’t Ask, Don’t Tell, Walter Dellinger — acting United States Solicitor General for the 1996-1997 Term of the Supreme Court — outlined a third middle ground that would allow the government to honor its duty to defend existing laws, but also register the administration’s opposition to the policy.

Dellinger recommended that the government allow the DOJ to appeal the policy, but argue that it believes it to be unconstitutional:

DELLINGER: I think it is certainly possible for the President going beyond merely expressing policy disagreements….but we need to distinguish between two senses of unconstitutional. You can say it’s unconstitutional in a predictive sense, that you predict it will be stricken down, and I don’t think you can say it in this case, because the Supreme Court is up for grabs on that issue. But there is also a sense that you can say the law is unconstitutional because you’ve reached your own judgment about the facts of the world that can render the law unconstitutional.

The theoretical rule is that a law that infringes on liberty …is only constitutional if it advances a governmental purpose. Now, the Solicitor General would assume that Congress can decide the military purpose and here Congress has decided that it advances a military mission…but the President, as Commander in Chief, can make his own judgment that it is not necessary and if he concludes as he has said that it’s harmful to the national defense, then in his belief he doesn’t have to give deference to the political branch, he is a political branch. [...]

Dellinger explained that the President — represented by the Justice Department — can go into court and argue that “it’s our understanding that this policy doesn’t advance the national interest and that’s what the Chiefs have said.” At that point, the government would be only technically defending the statute, and allow other parties to submit amicus briefs arguing in favor the policy.

This kind of strategy has some legal precedent, Dellinger continued. “In two cases cases, one from the Reagan administration and one from the George H. W. Bush administration, the government appealed cases, but gave its own view that the law they were defending is unconstitutional…and in both cases a 5-4 court disagreed with the government’s position and upheld the act of Congress.”

In this case, Obama would ask the Court to rule that the policy is, in fact, unconstitutional. “I think there are enough instances where the government has done that,” he said. “This is a middle ground between unilaterally not complying with the law and going in an actually defending, arguing that it’s constitutional.” He explained that in this way, the government would also avoid making “malicious” or “homophobic” arguments that are often made by certain conservative organization. “Once you get rid of those arguments, you get down to making arguments that are sort of weaker and weaker and you can be accused by critics of the administration from the right of throwing the case not doing the job. It’s almost better to be candid about it and say…. we’re just going to flat out say, there is not a sufficient government justification for this discrimination and burden….[but] we’re going to give the court the last word.”

Politico’s Josh Gerstein notes that the White House originally intended to repeal Don’t Ask, Don’t Tell over a two-year period, following an agreement with Secretary of Defense Robert Gates that would have led to legislative action only after the Pentagon’s Working Group released its report in December. From the very beginning, the White House — learning from President Clinton’s failed effort to push for a policy of open service — had deferred the repeal strategy to the Pentagon, but many Democrats and LGBT advocates actually forced the White House to change its overly cautious policy:

“The deal we understand was made between Obama and [Defense Secretary Robert] Gates was that it would be a two-year process,” said one gay rights activist who talks regularly with White House officials and asked not to be identified. [...]

What the White House’s slow-but-steady approach failed to anticipate was the rise of online activism by repeal advocates and the impatience those advocates would show based on polls indicating as many as 75 percent of Americans support “don’t ask” repeal. While many organized gay groups deferred to a greater or lesser extent to the White House’s strategy and timeline, bloggers like John Aravosis and in-your-face protesters like Dan Choi did not. The online activists and upstart groups never bought into the wait-for-the-Pentagon approach, even after Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, presented historic testimony in February endorsing an end to “don’t ask, don’t tell.”

And after Democrats began to suffer electoral defeats earlier this year in New Jersey, Virginia and Massachusetts, gay advocates began to fear that Obama’s plan to defer legislation on the subject to 2011 might doom the repeal effort altogether if Republicans took one or both chambers of Congress. [...]

The White House’s Plan A involved a Pentagon study for release in December 2010, followed by legislation thereafter. But in May, advocates won the White House’s public support for conditional repeal legislation that attempted to work around the next-Congress problem by giving Obama, the defense secretary and the chairman of the Joint Chiefs power to end the policy when the studies were complete.

Even that contingent plan was awkward for the White House, since it upended Obama’s initial agreement with Gates, who faces service chiefs staunchly opposed to repeal. “It started getting real messy,” said one person close to the talks. “The president was in a very tough spot.”

The administration remained mum as Secretary of Defense Robert Gates insisted in February and then again in April that the review should help inform the legislative process and maintained that Obama was committed to letting the group complete its work before moving forward. The White House has been reluctant to lobby moderate senators to include repeal legislation in this year’s defense authorization act and at times appeared unfamiliar with the different strategies for ending the policy this year.

For instance, it wasn’t until May 24th — three days before the House voted to include a gradual repeal amendment in the National Defense Authorization Act — that the the White House issued a statement in support of the amendment. The statement came only after the WH won the approval of Gates, who issued his own a terse endorsement of the gradual repeal approach shortly thereafter.

And the White House still appears deferential. In its decision to appeal the recent federal court ruling, the administration echoed the Secretary’s suggestion that a drawn out repeal process would actually help gay soldiers. Ending enforcement of the policy “before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty,” the government wrote in its appeal request. “If the Court’s decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court’s decision and injunction.”

This morning, during a Colorado Senate debate hosted by Meet The Press, Republican candidate Ken Buck said that being gay is a choice and compared it to alcoholism:

GREGORY: In a debate last month, you expressed your support for don’t ask, don’t tell, which we talked about with Mr. Gibbs. And you alluded to lifestyle choices. Do you that believe being gay is a choice?

BUCK: I do.

GREGORY: Based on what?

BUCK: Based on what?

GREGORY: Yeah, do you believe that?

BUCK: Well, I guess you can choose who your partner is.

GREGORY: You don’t think it’s something that’s determined at birth?

BUCK: I think that birth has an influence over it, like alcoholism and some other things, but I think that basically you have a choice.

Watch it:

During the earlier debate in September, Buck said he did not support repealing Don’t Ask, Don’t Tell because “we have to make sure that we are as homogeneous as possible in the military.” He claimed that ending the ban would create “distractions that are caused by allowing lifestyle choices to become part of the discussion.”

Huffington Post’s Amanda Terkel points out, according to all major mainstream medical and mental health professional organizations, “sexual orientation is not a choice. As the American Psychological Association has concluded, “[M]ost people experience little or no sense of choice about their sexual orientation.”

Since April, Michigan’s assistant attorney general Andrew Shirvell has been engaging in a bizarre internet campaign against Chris Armstrong, an openly gay student assembly president at the University of Michigan. Shirvell has attacked Armstrong’s “radical homosexual agenda” and has published posts on his blog “Chris Armstrong Watch” with photoshopped pictures of Armstrong with rainbow flags and swastikas.

On Tuesday, despite Michigan Attorney General Mike Cox’s efforts to defend Shirvell on First Amendment grounds, the Michigan Civil Rights Commission passed a resolution publicly condemning Shirvell and calling on Cox to support hate crimes legislation:

AND WHEREAS, such conduct should never be tolerated from anyone, let alone a public official responsible for representing all people equally.

AND WHEREAS, the Commission recognizes that the Attorney General is now taking disciplinary action, which the Commission hopes will result in the removal of this individual from an important public position. [...]

BE IT FURTHER RESOLVED THAT the Commission calls upon the Attorney General to immediately and publicly disclose the specific role(s) and responsibility(ies) of Assistant Attorney General Shirvell as it relates to the evaluation, execution and/or disposition of pending legislation, amicus briefs, and/or all other matters within the jurisdiction of the Office of the Attorney General, including but not limited to the issues of hate crime (bias motivated crime), bullying, and Elliott Larsen civil rights protections.

BE IT FURTHER RESOLVED THAT the Commission calls upon the Attorney General as Michigan’s chief law enforcement officer to join with the Michigan Sheriffs Association, the Michigan Association of Chiefs of Police, the Michigan State Police and the Prosecuting Attorneys Association of Michigan in their support of the hate crime bill that has already been passed by the Michigan House of Representatives.

Shirvell, who “has been on administrative leave since late September and will face a discipline hearing upon his return,” has maintained the legitimacy of his campaign against Armstrong, saying, “I don’t have any hate in my body at all.”

During yesterday’s Kentucky Senate debate, Rand Paul reiterated his support for abolishing the Department of Education, but then added that getting the federal government out of local schools would shield schoolchildren from learning about gay people:

PAUL: I would rather the local schools decide things. I don’t like the idea of somebody in Washington deciding that Susie has two mommies is an appropriate family situation and should be taught to my kindergardener at school. That’s what happens when we let things get to a federal level. I think I would rather have local school boards, teachers, parents, people in Paduka deciding about your schools and not have it in Washington.

Watch it:

Currently, there is a legislative prohibition on the federal government getting involved with local curriculum, even though several states have led a movement to establish common standards and President Obama and Secretary of Education Arnie Duncan have expressed support for the effort.

Unfortunately, despite the recent spate of LGBT suicides and overwhelming evidence that children who learn about gay people at an early age grow up to be more tolerant adults, Paul’s Democratic opponent, Attorney General Jack Conway, didn’t challenge Paul’s assertion and instead said that the Department provides local schools with critical funding.

Paul’s comments echo recent remarks by Sen. Jim DeMint (R-SC) who said that if someone is openly gay, they shouldn’t be teaching in the classroom.

Asked about her position on Don’t Ask, Don’t Tell during tonight’s Nevada Senate debate, Sharron Angle began by saying that lawmakers should defer the decision over wether or not to repeal the policy to the military, but then tried to conflate open service with same-sex marriage:

ANGLE: The policies within the military, especially this one are under review right now. And we should be waiting for the review of our military to make those decisions, not jumping ahead and making those decisions as Senator Reid tried to do when he put a provision of that provision in the defense bill. We and here in Nevada have been very careful to define marriage as between a man and a woman through two general elections. Over 70% of the population has voted to define marriage as between a man and a woman. I support what Mevada has done and I will represent our constituents on that basis.

Watch it:

Senate Majority Leader Harry Reid (D-NV) responded by suggesting that Angle “does not understand what went on in Washington” and reiterated that under the amendment included in the National Defense Authorization Act, DADT is not repealed until, President Obama, Secretary of Defense Robert Gates, and Chairman of the Joint Chiefs of Staff Mike Mullen “certified it would not hurt our defense.”

Angle, still unclear on how the amendment works, responded with: “We should be looking at that review before we make bills based on that review. So the review needs to come first and then the bill. I submit to you that I do know the proces. The process is, read the bill first, then pass it.“

This morning, federal employees who are insured through the Federal Employees Health Benefits (FEHB) Program received an email from Aetna advertising their new pet insurance plans. “In these challenging economic times, it’s good to know you can get some financial protection for unexpected illness and injury to your pets,” the e-mail reads before listing the many benefits:

The insurance is a handsome perk for those who can afford it, but what’s illuminating about the ad is that while federal employees can buy pet insurance “in these challenging economic times,” LGBT workers are still prohibited from purchasing policies for their partners or spouses by the Defense of Marriage Act (DOMA) — a federal law which denies federal benefits to legally married same sex couples.

President Obama supports repealing DOMA (although the administration is currently defending the policy in court), but hasn’t pressured Congress to repeal the Act. Last year, he issued a memorandum instructing federal agencies to “conduct a thorough review of the benefits they provide and to identify any that could be extended to LGBT employees and their partners and families” within the scope of current law and has since ordered federal agencies to “extend a host of benefits to their employees’ same-sex domestic partners.” These benefits include: long-term health insurance, credit union membership; access to fitness facilities, planning and counseling services (including briefings on employee pay and allowances, career counseling and retirement counseling.

There are currently two separate bills in the House and Senate to provide full federal benefits to same sex domestic partners of federal employee. Last year, the legislation was voted out of the Senate Homeland Security and Governmental Affairs Committee on a bipartisan basis (Sen. Susan Collins (R-ME) co-sponsored the measure), but Sen. Joe Lieberman (D-CT) — the bill’s chief sponsor — has promised not to move this on the floor of the Senate “until we get the explicit offsets” from OPM. The Congressional Budget Office (CBO) estimates that the legislation would cost approximately $310 million through 2020 and benefit some 30,000 employees with same-sex partners.

The House Oversight and Government Reform Committee approved a similar domestic partner benefits bill in November of 2009.

Moments after the Justice Department asked a district court judge to stay her injunction of Don’t Ask, Don’t Tell so that it could appeal the decision, President Obama told young voters at an MTV-sponsored town hall that the policy should be repealed by Congress, not through an executive order or the courts.

Distinguishing himself from President Harry Truman — who desegregated the armed forces via executive order in 1948 — Obama explained that “the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end a policy.” Obama stressed that he’s been able to convince Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Mike Mullen to support repeal and promised that the policy would end “on my watch”:

OBAMA: I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security — anybody should be able to serve. And they shouldn’t have to lie about who they are in order to serve. So we are moving in the direction of ending this policy. It has to be done in a way that is orderly because we are involved in a war right now. But, this is not a question of whether the policy will end. This policy will end and it will end on my watch. But I do have an obligation to make sure that I’m following some of the rules. I can’t simply ignore laws that are out there, I’ve got to work to make sure that they are changed.

Watch it:

LGBT activists and Democratic lawmakers however, have argued that Obama could use his stop-loss authority to issue an order prohibiting the Secretary of Defense from establishing, implementing, or applying any personnel or administrative policies on the basis of sexual orientation or, alternatively, fail to appeal the recent federal district court ruling if he believes that the policy was unconstitutional. Obama, however, has previously said that it is.

During the town hall, Obama spoke about the recent bullying of LGBT teens and expressed support for legislation that would criminalize such behavior. He also said that he didn’t think being gay or transexual was a choice. “I don’t think it’s a choice,” he said. “I think that people are born with a certain make-up and we are all children of God. We don’t make determination about who we love and that’s why I think discrimination on the basis of sexual orientation is wrong.”

Moments ago, the Obama Justice Department asked Judge Virginia Phillips to stay her broad injunction barring the military from enforcing the Don’t Ask, Don’t Tell policy until it has an opportunity to appeal the decision to the U.S. Ninth Circuit Court of Appeals. From the Advocate’s Kerry Eleveld:

Sources said Justice Department attorneys are expected to file the request to U.S. district judge Virginia A. Phillips in Riverside, Calif. this afternoon.

Should Phillips deny the request for a stay, government attorneys are expected to file an emergency request to the U.S. court of appeals for the ninth circuit.

Repeal advocates have argued that while the Department of Justice has an obligation to defend existing law, “it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception.” As DADT scholar Nathaniel Frank explained, “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional.”

But in the days since Republicans and two Democrats successfully filibustered repeal in the Senate (the measure passed the House in May), it’s become increasingly clear that Obama still believes that the policy is, in fact, constitutional. Obama has consistently argued that he would continue to try to repeal Don’t Ask, Don’t Tell through the legislative process to accommodate the work of the Pentagon’s ongoing review. “I don’t think it’s too much to ask, to say ‘Let’s do this in an orderly way’ — to ensure, by the way, that gays and lesbians who are serving honorably in our armed forces aren’t subject to harassment and bullying and a whole bunch of other stuff once we implement the policy,” Obama told Rolling Stone magazine in late September. The request for a stay comes a day after Secretary of Defense Robert Gates warned that ending the ban is “an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training.” “It has enormous consequences for our troops,” Gates said.

Earlier today, The Palm Center submitted a FOIA request to the Department of Defense for any reports or information related to negative or “extreme consequences” from this injunction period of open service and Press Secretary Robert Gibbs said that the Pentagon was working on new guidelines to be released in the near future about how to deal with the injunction. Also, today, Dan Woods, the lead attorney in the case sent a letter to the Department of Justice citing a New York Times story claiming that Omar Lopez, a gay veteran, was prohibited from reinlisting. If the Times story is accurate, Woods says, “the Defense Department would appear to be in violation of the Court’s injunction and subject to citation for contempt.” SLDN also reported this afternoon that it had learned that an email was sent to JAG officers in the U.S. Air Force suggesting that the military was preparing to comply with the injunction. “At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms,” it read.

The DOJ’s stay request comes after intense lobbying from House and Senate Democrats — including House Speaker Nancy Pelosi — to allow the ruling to stand and seems to contradict Obama’s promise to end the policy before the end of the year, a pledge administration officials reiterated as recently as September 23.

Obama could still begin the process of ending the policy this year by using his “stop loss” authority to issue an order prohibiting the Secretary of Defense from establishing, implementing, or applying any personnel or administrative policies on the basis of sexual orientation. Or, the Senate could try to pass the measure after the Pentagon completes its review of the policy in December.

John Aravosis catches a leak from the Pentagon’s Working Group studying Don’t Ask, Don’t Tell at the very bottom of this Los Angeles Times article about the recent court ruling overturning the policy:

The Pentagon task force charged with examining the issue is “well along” in formulating recommendations, and the ruling is not expected to affect its work, another senior military officer.

The task force found deep resistance to the idea of repealing the law in some elements of the armed services, especially within the combat units, an officer familiar with the findings said. But the surveys also have found segments of the military who were not overly worried about allowing gays and lesbians to serve, the officer said.

“What else do you expect the Pentagon to do?” he asks. “Their commander in chief is a pushover. They can do whatever they want, and they know he won’t touch them.” Indeed, Obama has been deferential to the military on DADT, agreeing to completely accommodate the review and resisting calls to set a moratorium on additional discharges, which the Pentagon opposes.

Factions within the Pentagon — including the service chiefs — support the ban and have attempted to undermine or delay Obama’s stated policy preference. In a direct response to this story, however, Pentagon officials told me that they were not aware of any leaks out of the Working Group, and say that it has been brought to their attention.

Relatively little is known about the results of the study, which are due out the first week of December. Last month, during Gen. James Amos’ confirmation hearings to become the Marine Corps’ 35th Commandant, Amos said that many Marines were hesitant to change the policy. Similarly, the Working Group has reported that a relatively modest percentage of servicemembers and their spouses responded to surveys about lifting the ban, suggesting that many military members may not be very concerned about the change.