Kevin And Don Respond To Being Self Loathing

Looking back at their journey from the Stonewall Democratic Club to Log Cabin Republicans, they claim it was one that was actually started by the democrats. After being told that marriage as not a priority on the agenda in 1995, they became disillusioned with the DEMS. For a decade they felt like they did not belong until they met the republicans of the Log Cabin Republican Club and discovered they too shared a dream of marriage equality. This blog is now a digital time capsule of their time as Republicans and moderated by a friend and supporter.

Thursday, July 15, 2010

2011 Application of the Year: QR Judicial Intelligence iPhone APP

(The QR Code Available On All Smartphones - Use Your Smartphone To Discover The Next Platform in TRUTH) THE FOLLOWING WAS NOT AUTHORIZED BY www.Blogcabin.org or any know associated individuals) Kevin Norte: Involvement In Challenges To Proposition 8 Related Resources : Kevin Norte governors2007inaugural.com/site/c.gdJIKO : Governor Arnold Schwarzenegger's 2007 Inaugural Committee inlamagazine.com/1102/special_reports/sp : IN Los Angeles Magazine article huffingtonpost.com/ryan-j-davis/the-grea : Ryan J. Davis blogcabinca.org : Blog Cabin outinsidethecabin.blogspot.com : OUT Inside The Cabin Blog Involvement In Challenges To Proposition 8 Kevin Norte authored an opinion piece in the Metropolitan News-Enterprise of Los Angeles six days after the California Supreme Court's ruling on May 15, 2008 ruling in In re Marriage Cases 2008 43 Cal. 4th 757. That case is precedent-setting because it found the right to Same-sex marriage in California. Norte analyzed the repercussion the case would have on Proposition 8, the ballot initiative on the November 4, 2008 ballot. That case found several constitutional rights under the California Constitution and Kevin queried whether those constitutional rights could be simply abolished by a voter initiative or would the legislature have to place a constitutional revision on the ballot or determine whether a constitutional convention would have to be held. Kevin Norte is the first legal analyst to publish an article in a legal newspaper of public record on the interactions between the historic Supreme Court's ruling and the California Initiative process. He explored the topic further in another expanded article in the Met-News on June 17, 2008, the first full day that gay marriage became legal in California. The legal education piece was entitled, "Election Law: How One Legally Might Remove a Ballot Initiative Prior to an Election". Norte posited that the language of the initiative was flawed and outdated. The legal analyst concluded that one could legitimately argue that the Court order the "California Secretary of State, to remove the proposed 'Limit on Marriage' Constitutional Amendment Initiative California Proposition 8 2008Proposition 8 from the November, 2008 ballot." The Supreme Court rejected this argument on July 16, 2008 without comment or ruling on the merits of the "revision" argument. On June 20, 2008, the pro-same-gender marriage parties file a Writ of Mandate in the California Supreme Court in San Francisco. The San Francisco Chronicle reporter Bob Elko reported that the coalition filed a writ to seek removal of the initiative. The grounds state in the writ petition were similar to those discussed in both the May 21, 2008 and June 17, 2008 articles authored by Norte but failed to reference the official reporter pages of the case. Kevin's second article contained the proper citations. Norte regularly contributes articles and opinion pieces on Proposition 8 to the Met-News the online OpEd News and BLOGCABIN. In January 2009, the law firm of White and Case submitted an amicus brief on behalf of Log Cabin Republicans in the Supreme Court challenge to Proposition 8 based on Norte's writings. On May 26, 2009 the California Supreme Court upheld the validity of California's Proposition 8, however Associate Justice Carlos Moreno most recently considered for an appointment to the United States Supreme Court basically agreed with Norte's analysis. Moreno held that Prop. 8 should have been voided as an unlawful amendment. "The majority's holding is not just a defeat for same-sex couples, but for any minority group that seeks the protection of the equal protection clause of the California Constitution", he wrote. In the meantime, the Court carved out an exception for the 18,000 couples married while it was legal in California, including the Nortes. The former Solicitor General of the United States, Theodore Olson, filed a challenge to Proposition 8 in Federal Court based on a violation of Federal Equal Protection using the historic ROMER case as its precedent. As of 2010, Kevin authored a follow-up opinion piece to his 2008 marriage articles in which he praised California Supreme Court Associate Justice Carlos Moreno for having the courage for arguing that Norte's Revisionist Theory of Marriage is the correct analysis of the California Constitution, that issues like the constitutional right to "gay marriage" is a "legally certainty" but that it will not be "politically correct" for some time, and encouraged Judge Vaughn Walker to do the right thing and strike down California's Propposition 8 for what it is -- discrimination." After Judge Vaughn Walker handed down his decision finding California's Proposition 8 "discrimination" echoing Norte's opinion expressed in his article, Governor Arnold Schwarzenegger, in keeping his commitment to his friends, Log Cabin Republicans and the LGBT community in general sought to have the ruling applied immediately and commented. "The administration believes the public interest is best served by permitting the court's judgment to go into effect, thereby restoring the right of same-sex couples to marry in California", lawyers for Schwarzenegger said in the legal filing. "Doing so is consistent with California's long history of treating all people and their relationships with equal dignity and respect." Related Categories Category:Living people Category:Duos Category:Year of birth missing (living people) Sub-Topics for Kevin Norte Kevin Norte (overview) Don Norte Kevin Norte Log Cabin Republicans Involvement In Challenges To Proposition 8 Context Of Same Sex Couples Taking One Name In California 38 Related Topics about Kevin Norte AFL-CIO .. American .. Arnold Schwarzenegger .. Bobby Shriver .. California Constitution .. California Supreme Court .. California .. Equality California .. Fiona Ma .. GLAAD .. Hollywood .. Huffington Post .. In re Marriage Cases .. John Duran .. Log Cabin Republicans .. Los Angeles County .. Los Angeles .. Martin Ludlow .. Matt Foreman .. Paul Koretz .. Proposition 8 .. Rent Stabilization Commission .. Republican Party .. Republican .. Same-sex marriage in California .. State Bar of California .. Susan Berman .. The Huffington Post .. The Los Angeles Times .. The National Gay and Lesbian Task Force .. The Trevor Project .. West Hollywood .. constitutional rights .. domestic partner .. gay rights .. law clerk .. openly .. trustee ..

California's Government Moves Too Slow To Fix Minor Problems

When I originally wrote about the Problems with California's revised Code of Civil Procedure § 1005 (effective 01.01.2005) in a 2004 article published by the Daily Journal, I was on member of the State Bar's Committee on the Administration of Justice. That was my issue but it was never resolved and after term limits, I left in 2006, with a request, that some day they correct this mistake.

Happily on July 6, 2010, Governor Schwarzenegger signed a bill into law that explained exactly how one is to "COUNT DAYS" for purposes of filing motions with the Court.

Finally, the confusing and extended controversy has been resolved about counting days. (CCP § 1005.)

Governor Arnold Schwarzenegger signed AB 2119, sponsored by The State Bar of California Committee on Administration of Justice, which determines how days will be computed; there had been some dispute as to whether you counted forward or backward in determining whether a motion was timely filed or not.

SECTION 1. Section 12c is added to the Code of Civil
Procedure, to read:
12c. (a) Where any law requires an act to be performed no
later than a specified number of days before a hearing date, the
last day to perform that act shall be determined by counting
backward from the hearing date, excluding the day of the hearing
as provided by Section 12.
(b) Any additional days added to the specified number of days
because of a particular method of service shall be computed by
counting backward from the day determined in accordance with
subdivision (a).

CLICK HERE THE BILL'S ANALYSIS DISCUSSING THE FLAWS IN THE 2004 BILL.
DECEMBER 15, 2004 | LAW PRACTICE
New Law on Filing Deadlines Results in Ambiguities
Focus Column
Litigation
By Kevin Norte

AB3078, approved by Gov. Arnold Schwarzenegger on July 15, 2004, amends, in part, Section 1005 of the Code of Civil Procedure effective for motions made on or after Jan. 1. Attorneys need to be aware of this change in the law - and some resulting ambiguities.

Existing law provides for the deadlines, by reference to calendar days, for service of specified moving, supporting and opposing papers regarding motions and other hearings, as well as the deadline for the completion of discovery proceedings before trial and the deadline for demands involving the exchange of information concerning expert witnesses before trial.

The newly enacted statute revises those deadlines by referring to court days while leaving intact the references to calendar days for mailings, rather than just referring to calendar days or court days. AB3078 also makes other related changes.

The new rules to remember are that, unless an order shortening time is obtained, motions, demurrers and preliminary injunctions (where no temporary restraining order is issued) made on or after Jan. 1 must be filed at least 16 court days before the hearing. Oppositions must be filed nine court days before the hearing, and replies must be filed five court days before the hearing.

These amendments provide no benefit to parties who make motions before the effective date because amendments of this type are prospective and can only affect a notice of a hearing to be held after the effective date. See Civil Code Section 3 cf. Strauch v. Superior Court, 107 Cal.App.3d 45 (1980); De Miglio v. Superior Court, 115 Cal.App.3d 973 (1981).

The only motion that can be filed nine court days before the hearing is a motion to strike a demurrer. Code of Civil Procedure Section 435(b)(3).

AB3078 incorporates further changes to the Civil Discovery Act, set forth in AB3081 (effective July 1, 2005), which also was signed by the governor. AB3081, however, does not affect the operative date of the revisions to Code of Civil Procedure Section 1005(b).

Under Code of Civil Procedure Section 1005.5, a motion is deemed to have been made, and to be pending before the court for all purposes, on due service and the filing of the notice of motion. Cromwell v. Cummings, 65 Cal.App.4th Supp. 10 (1998).

Under Code of Civil Procedure Section 12, the notice period is computed by excluding the day that service was made (the date of mailing, for example) and includes the last day, unless it is a holiday - in which case it is also excluded. Lamanna v. Vognar, 17 Cal.App.4th Supp. 4 (1993) (three-day-weekend rule).

According to Government Code Section 6806, "[a] day is the period of time between any midnight and the midnight following." In computing days, "fractions are not counted but are deemed entire days." People v. Harvey, 193 Cal.App.3d 767 (1987).

For oppositions, Section 1005(b) requires service and filing "at least nine court days" before the hearing; therefore, the problem with the prior statute's 10th day's falling on a weekend is resolved. Before the change, the papers must be filed on the last day the court is open for business before the 10th day (See Steele v. Bartlett, 18 Cal.2d 573 (1941) (permitting "an extension would be to nullify legislative intent that an act must be performed more than a designated number of days before the event specified.") The same holds true for replies.

What has not changed is the requirement that proofs of service of the moving papers shall be filed no later than five calendar days before the hearing. State Rule of Court 317(c).

There are some delivery exceptions to the state's new 16-court-day plus either 2-5-10-20 additional calendar days for fax, express, mail in-state, mail out-of-state and mail out-of-country minimum-notice requirements. While not inclusive, the main requirements are at least 75 days' notice for summary judgment/adjudications (Code of Civil Procedure Section 437(a)) and 45 days' notice for discretionary dismissal motions based on delay in prosecution (Code of Civil Procedure Section 373 (a).

There remains the issue of notice regarding protective orders related to discovery motions. Whether sought affirmatively or in response to a discovery motion, these types of motions are subject to the Code of Civil Procedure Section 1005 notice provisions because protective orders may be issued only "pursuant to a motion." Code of Civil Procedure Sections 2017(c) and 2019(c).

Local rules related to motions and demurrers are pre-empted by state Rule of Court 981.1(a), and any local rule concerning these fields is null and void. Of course, the exception to this rule is the "local local rule" that the time and place of the filing, and the service of a motion in limine, shall be at the discretion of the trial judge. State Rule of Court 312(d)

It is questionable whether the five-calendar-day reply rule on motions to certify or decertify a class or amend or modify an order certifying a class under state Rule of Court 1854(c) remains valid, because that term is shorter than the legislated five-court-day rule for replies. See Laborers' International Union v. El Dorado Landscape Co., 208 Cal.App.3d 993 (1989).

Under a similar analysis, state Rule of Court 313(i) conflicts with the Code of Civil Procedure. While the Rule of Court states that, "to the extent practicable, all supporting memorandum, declarations, and affidavits must be attached to the motion," Code of Civil Procedure Section 1005(b) states that "all moving and supporting papers much be filed at least 16 court days before the hearing."

A temporary restraining order can remain in effect for up to 15 calendar days, unless the court permits a 22-calendar-day period for good cause shown. Code of Civil Procedure Sections 513.010(a) and 527(d)(1).

Under the revised Section 1005, a defendant is entitled to 16 court days' notice on a motion for a preliminary injunction, and, therefore, if good cause is not shown, the temporary restraining order would dissolve before the motion for a preliminary injunction's being heard. Further, even if good cause is shown, the plaintiff may face detrimental timing issues if he or she is not careful.

There are also some exceptions to the notice rules in the event of a natural disaster (earthquake, fire or flood, for example) and civil unrest (including riots and terrorist attacks). If a branch court in a particular county is closed during such an event, it is not a considered holiday. If, however, all the courthouses where the document can be filed (that is, in an entire county) are closed, then the day would count as a court holiday in that county. Bennett v. Suncloud, 56 Cal.App.4th 91 (1997).

Thirteen 13 holidays cannot be included in the counting of court days when filing motions with the court.

It does make a difference whether one first counts 16 court days or first the five calendar days, or whether one counts backward from the hearing date or forward from the date of the proof of service, because the sequence determines how many noncourt days are included or excluded in a particular count.

No published state case has been found discussing priority of applying a count of mixed calendar and court days. Hence, a resolution of the question here is one of statutory interpretation.

Legislative interpretation begins by examination of the language of the statute, giving the words their ordinary meaning and considering them in the context of the statutory framework. Barnes v. Department of Corrections, 74 Cal.App.4th 126 (1999).

Also, Section 1013(a) provides no precedent for counting under Section 1005, because Section 1013 uses different language from Section 1005 amendments, using "increased" and "before the hearing."

Section 1013(a) states, "[A]ny period of notice ... shall be extended five calendar days, upon service by mail." So Section 1013 presents no problem as to what kind of days to extend and where to count them (since they match old Section 1005's use of calendar days, without mixing day types).

One logical interpretation of the amended Section 1005 is to follow the sequence in which it reads - that is, 16 court days, increasing by five calendar days "before the hearing" for mailing, such that the calendar days fall on the later dates.

On the other hand, the rule leaves enough ambiguity that, arguably, the five calendar days could be counted as the earlier days. To demonstrate the differences, below are some applied hypothetical scenarios.

On a computer calculator, CalDays (at www.jibbsnet.org/caldays/interactive.asp), calculating notice starting with calendar days for a notice date of Nov. 30, 2005, the earliest allowed hearing date was Dec. 28, 2005. However, calculating notice starting with court days, the earliest hearing date was Dec. 27, 2005.

As another example, counting manually for an Nov. 30, 2005, hearing date, counting backward and starting with calendar days gives a service date of Nov. 1, 2005. In contrast, for an Nov. 30, 2005, hearing date, counting backward and starting with court days gives a service date of Oct. 29, 2005.

Of course, if there is opposition on the merits, then issues of proper notice are waived. Defects in motion service are waived where an opposition was filed addressing the merits. Carlton v. Quint, 77 Cal.App.4th 690 (2000), modified 2000 C.D.O.S. 928.

At this juncture, whether court days are counted before counting calendar days is open to interpretation and susceptible to vigorous debate among some in the legal community. The use of CalDays should be encouraged, but it is just one tool in the process of deciding whether a motion was timely made or not.

Kevin Norte, a court research attorney, is a member of the State Bar's Committee on the Administration of Justice.

**********

© 2004 Daily Journal Corporation. All rights reserved.

Wednesday, July 14, 2010

HOW THE GOP IS SAVING GAY MARRIAGE

How the GOP is Saving Gay Marriage
By Joshua Green
Last week, a US District Court judge in Boston struck down a significant portion of the Defense of Marriage Act, ruling that the controversial 1996 federal law violates the equal protection clause of the Constitution by denying gay and lesbian couples the federal benefits afforded to straight couples. Although Massachusetts legalized gay marriage in 2004, couples who wed were prohibited from claiming Social Security survivors' benefits, filing joint tax returns, and leaving work to care for a sick spouse. The court ruled that the federal government must treat the state's gay married couples the same way as everyone else. ''The Constitution 'neither knows nor tolerates classes among citizens,' '' the court opined, echoing the words of Justice John Harlan, the lone dissenter in Plessy v. Ferguson, the notorious 1896 Supreme Court case that upheld racial segregation.

Nearly as significant as the decision itself is the political affiliation of the judge who made it: 79-year-old Joseph Tauro, the longest-serving appointee of Richard Nixon. Why is this significant? Because while the recent confirmation hearings for Elena Kagan dwelt on whether ''activist'' liberal judges appointed by Democrats would trample legal precedent, the judges who have begun the constitutional protection of same-sex marriage have mostly been Republican appointees like Tauro.

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. In 2008, the Connecticut Supreme Court struck down a comparable prohibition in an opinion written by Justice Richard Palmer, an appointee of Governor Lowell Weicker, a three-term Republican senator who became an independent. 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.

The Tauro and Walker rulings are federal decisions, and particularly salient as such. For years, federal courts were considered hostile territory for gay rights advocates, ever since Bowers v. Hardwick, the first of three Supreme Court decisions affecting prospects for gay marriage. The Bowers decision of 1986 upheld states' right to criminalize same-sex intimacy, and did so in a sneering majority opinion -- written by Byron White, a Democratic appointee -- that suggested a distinct contempt for any claims to gay rights.

Two subsequent decisions hinted at a thaw. In 1996, Romer v. Evans derailed an attempt to overturn state and municipal anti-discrimination laws, on which activists had focused after Bowers. In contrast to that decision, the majority opinion in Romer was strikingly respectful; it, too, quoted Harlan's dissent in Plessy v. Ferguson. In 2003, Lawrence v. Texas invalidated state sodomy laws, explicitly overruling Bowers in the process. The Court further held that ''the intimate, adult consensual conduct at issue'' was protected under the Fourteenth Amendment.

Both decisions were written by Justice Anthony Kennedy, another Reagan appointee. If either of this summer's federal decisions get to the Supreme Court, Kennedy will likely cast the deciding vote -- which would, in the end, be most fitting.

What all these judges share is their distinctiveness from Republican appointments over the last two decades, who tend to be activists affiliated with conservative outfits like the Federalist Society -- think John Roberts and Samuel Alito. This makes the Republican pedigrees of the judges moving gay marriage toward legality all the more striking, particularly in how it contrasts with conservative outcries about judicial activism. But more than that, it's a gauge of how far from the mainstream modern conservative jurists have drifted.

Joshua Green writes a weekly column for the Boston Globe.

This article available online at:

http://www.theatlantic.com/politics/archive/2010/07/how-the-gop-is-saving-gay-marriage/59770/
Copyright © 2010 by The Atlantic Monthly Group. All Rights Reserved.

Tuesday, July 13, 2010

LOG CABIN COMES ON FIERCE ON DADT

California trial opens on "don't ask, don't tell"
Log Cabin Republicans challenge the constitutionality of the policy, will enter Obama statements into evidence
By JULIE WATSON, Associated Press
An attorney for the nation's largest Republican gay rights group has told a judge he will use a statement by President Obama as part of a federal court lawsuit challenging the military's "don't ask, don't tell" policy.

In his opening statement Tuesday at the trial in Southern California, attorney Dan Woods said he would enter as evidence Obama's comments that the policy has weakened national security.

Woods is representing the Log Cabin Republicans. The group wants the judge to halt the policy that prohibits military members from acknowledging they are gay and requires them to be discharged if they are discovered to be gay.

The case puts the government in the position of defending the policy while Obama is pushing Congress to repeal it.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.

RIVERSIDE, Calif. (AP) -- A Republican gay rights group is challenging the constitutionality of the military's "don't ask, don't tell" policy in federal court amid congressional debate to repeal the policy.

If the Log Cabin Republicans win their case, their lawyer says he will ask a federal judge to halt the policy immediately nationwide.

Opening arguments were set to began Tuesday in the broadest challenge to "don't ask, don't tell" in recent years.

The policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity, even in the privacy of their off-base homes.

"We're trying to get this changed right away. After all, there are people today fighting, dying for our country, while their constitutional rights are being violated," said attorney Dan Woods, who represents the Log Cabin Republicans, whose 19,000 members include current and former military members.

Some legal experts say the trial could not come at a worse time for Obama, who derided the policy but has failed to get it off the books since taking office last year. Not only are midterm elections approaching, but the group suing the U.S. government is Republican.

"This trial is taking place as a direct consequence of the president's political decision in January 2009 to put the repeal of this law on the back burner," said Richard Socarides, an attorney and a senior adviser to President Bill Clinton on gay rights issues. "We shouldn't still be living under a law that excludes people from military service because they are gay."

Socarides added the fact that the U.S. Justice Department will be defending the policy in court is nonsensical.

"On the one hand, the president has said he's working hard to stop these discharges. And on the other hand, the Justice Department is spending taxpayer dollars defending their ongoing right to kick people out," Socarides said.

In a statement e-mailed to The Associated Press, the Justice Department said it is "defending the statute, as it traditionally does when acts of Congress are challenged."

But the agency also noted the position of Obama, who is working with military leaders and Congress to repeal the law.

"The President believes and has repeatedly affirmed that 'don't ask, don't tell' is a bad policy that harms our national security and undermines our military effectiveness because it requires the discharge of brave Americans who wish to serve this country honorably," the Justice Department said.

The government tried to block the case from going to trial, arguing among other things that courts should not decide constitutional issues and that a trial was unnecessary because of ongoing congressional debate.

The U.S. House voted May 27 to repeal the policy, and the Senate is expected to take up the issue this summer.

In deciding to hear the challenge, U.S. District Judge Virginia A. Phillips said the "possibility that action by the legislative and executive branches will moot this case is sufficiently remote."

Woods said he wants a federal injunction. If that happens and the government appeals, Woods said he will ask Phillips to suspend the policy until the case is decided.

The case is unique in that it is not based on an individual's complaint but rather is a broad, sweeping attack on the policy.

The group says more than 13,500 service members have been fired under the law since 1994.

Gay troops at bases in the West have greater protections than their colleagues around the globe because of a 2008 ruling by the 9th U.S. Circuit Court of Appeals that forced the military to apply a much higher threshold in determining whether a service member should be dismissed for being gay.

That ruling was in a lawsuit filed by Air Force Maj. Margaret Witt, a decorated flight nurse, who argued her dismissal actually hurt troop readiness and morale because there was a shortage of flight nurses at the time. The court ruled that for a gay service member's discharge to be constitutional, the military must demonstrate that the firing promotes cohesion or discipline in the unit.

Known as the "Witt standard," it became law in the court's jurisdiction covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

"One option for the judge is to sit on it awhile and see if Congress goes ahead and does repeal it," said Paul Smith, a civil rights attorney in Washington, D.C. "It seems to me most federal judges would go about with the case and let the chips fall where they may."

----------

Risling reported from Los Angeles.

LOG CABIN DON'T ASK, DON'T TELL-The Only Suit Still Standing

LOG CABIN DON'T ASK, DON'T TELL-The Only Suit Still Standing
Los Angeles Times
Copyright 2010 Los Angeles Times

July 13, 2010

Section: LATExtra

'Don't ask' policy faces legal test
A GOP group asks a U.S. court in Riverside to overturn the military's rule on gays.

Phil Willon

The U.S. government's "don't ask, don't tell" policy banning openly gay military service members will be at the center of a legal battle played out in a federal courtroom in Riverside on Tuesday, with the policy facing its first major constitutional challenge since a 2003 U.S. Supreme Court decision in a Texas case struck down anti-sodomy laws.

In its lawsuit against the government, the Log Cabin Republicans, a gay rights group, argues that the Texas ruling means the military can no longer interpret a mere admission of homosexuality as justification for a discharge.

The group also contends that the "don't ask, don't tell" policy is discriminatory and violates lesbians' and gay men's constitutional rights to due process, freedom of speech and right to association. It asks U.S. District Judge Virginia Phillips for a permanent injunction that would forbid the government to enforce the policy.

During the trial, Log Cabin attorneys are expected to focus their case on other countries that allow gays and lesbians in the military, as well as experts and veterans who are expected to testify that most service members in today's military have no objection to serving with gays and lesbians.

Among those testifying will be Jenny Kopfstein of San Diego, a decorated Navy officer who was discharged in 2002. Kopfstein felt that, while serving on the guided missile cruiser Shiloh, she was forced to "lie, or tell half-truths, to my shipmates" about her sexual orientation. She wrote a letter to her commanding officer in 2000 telling him that she is a lesbian.

"When I arrived at my ship, everyone wanted to get to know me, to find out what kind of person I was," said Kopfstein, a U.S. Naval Academy graduate. "It was like a slow pressure cooker, where all these questions built up and I couldn't answer them honestly.... I felt totally and utterly alone."

The legal challenge goes to trial as the military's policy on gays continues to roil Congress and provided one of the rare partisan flashpoints in the recent confirmation hearings of Supreme Court nominee Elena Kagan, who criticized the law as a "profound wrong" while dean of Harvard Law School.

The lead attorney for the Log Cabin Republicans said the "cruel irony" is that Justice Department attorneys in court have been arguing the opposite -- saying Congress passed the ban on gays to preserve military readiness and cohe-siveness.

Attorney Dan Woods also said that despite indications Congress may repeal the law, there is no guarantee that will occur.

"It's certainly not going to happen this year," said Woods, a Los Angeles-based attorney at the White & Case law firm who is working pro bono.

"While patriotic homosexuals are serving in the military now, and fighting and dying for us in Iraq and Afghanistan, it's important for them to have their constitutional rights validated now, immediately."

Bolstering the plaintiff's argument is a 2008 decision by the U.S 9th Circuit Court of Appeals regarding Air Force Maj. Margaret Witt, who was discharged after her superiors learned she lived with a woman off-base in Washington state.

The court determined that the military had to show that the discharge was necessary to maintain policy goals such as military readiness or unit cohesion.

Combined with the Texas case, the two rulings have put a greater burden on the government to show that having gays and lesbians in the military creates an unacceptable risk to military capabilities, said constitutional scholar Kenji Yoshino of the New York University School of Law.

"If you asked me prior to 2003 would this case have any chance of succeeding, I would have said no. Now, I'm not so sure," Yoshino said.

Still, Yoshino said the courts historically have "kept their nose out of military affairs," because the Constitution places the responsibility for regulating the military exclusively on the executive and legislative branches of government: "That's why the government has won case after case on this."

The "don't ask, don't tell" policy was adopted by the Clinton administration in 1993 and was considered a reform to the military's practice of seeking out and discharging gays and lesbians. Under the policy, as long as gays and lesbians keep their sexual orientation secret, they are allowed to serve.

However, more than 10,000 service members have been discharged under the policy.

President Obama has been an outspoken critic of the policy and continues to advocate its repeal.

A Justice Department spokeswoman said that the administration has the obligation to defend acts of Congress, regardless of any policy changes under consideration.

"The president believes and has repeatedly affirmed that 'don't ask, don't tell' is a bad policy that harms our national security and undermines our military effectiveness because it requires the discharge of brave Americans who wish to serve this country honestly," said Tracy Schmaler, a spokeswoman for the Department of Justice. "The president and his administration are working with the military leadership and Congress to repeal this law."

Even if the legislation to repeal "don't ask, don't tell" becomes law, it wouldn't take effect unless the Pentagon completes an ongoing study to determine if it can adapt to the change without harming military readiness.

The study is scheduled to be completed in December.

The U.S. House passed a bill that would repeal the policy in May, but it could have a much stiffer challenge in the Senate. Sen. John McCain (R-Ariz.) said he would support a filibuster, arguing that Congress should wait until the Defense study is completed.

The repeal also has been tacked onto a Defense spending bill that the White House has threatened to veto if Congress weighs down legislation for weapons programs the Pentagon wants to eliminate.

"As much as President Obama promises that 'don't ask, don't tell' will be repealed, there's still a level of distrust there," said Charles Moran, spokesman for the Log Cabin Republicans. "The Obama administration has made many promises, and the Democratic Congress has made many promises, to the gay and lesbian community and have not acted on them."

--

phil.willon@latimes.com