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Gay juror decision bodes well for marriage cases: experts

National LGBT Bar Association, Gay News, Washington Blade

The Ninth Circuit Court of Appeals applied heightened scrutiny in ruling against discrimination against gay jurors (image via wikimedia).

A ruling handed down by a federal appeals court on Tuesday in favor of LGBT non-discrimination in jury selection bodes well for the success of marriage equality litigation, according to legal experts who spoke to the Washington Blade.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the decision is important in and of itself, but also because of its impact on the case pending before the same court against Nevada’s ban on same-sex marriage.

“The ruling will make it even more difficult for Nevada’s marriage law to withstand the current challenge to it because heightened scrutiny means that the government will have to identify an ‘important’ state interest if it wants to continue to exclude gay and lesbian couples from marriage,” Goldberg said.

On Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals determined the trial judge erred in allowing one litigant to remove a juror because of his sexual orientation, remanding the case for a new trial.

The case — Glaxo Smith Kline v. Abbott Laboratories — is the result of antitrust, contracts and business tort claims filed against the company for quadrupling the price of its protease inhibitor booster drug used by people with HIV. During jury selection, Abbott used its first peremptory challenge to strike a prospective juror after learning he was gay.

Writing for the majority, U.S. District Judge Roy Reinhardt ruled that Abbott “unconstitutionally used a peremptory strike” to exclude Juror B from the case because of his sexual orientation, but goes further by saying the court must apply heightened scrutiny in its ruling in the wake of the U.S. Supreme Court decision against the Defense of Marriage Act.

“Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” Reinhardt writes. “In short, Windsor requires heightened scrutiny.”

It’s not the first time that an appellate court has applied heightened scrutiny, or a greater assumption a law is unconstitutional, when considering a case related to sexual orientation. The U.S. Second Circuit Court of Appeals applied that standard when ruling in favor of Edith Windsor in her case against DOMA before that lawsuit came before the Supreme Court.

Several federal district courts have made similar rulings, as have the state high courts of California, Iowa, Connecticut and New Mexico. The view that laws related to sexual orientation should be subject to heightened scrutiny is also shared by the Obama administration.

But the decision in the Ninth Circuit is significant because it creates precedent within that jurisdiction to apply heightened scrutiny in the numerous cases before it involving gay people and may encourage courts outside the circuit to do the same.

Doug NeJaime, a law professor at the University of California, Irvine, said the court application of heightened scrutiny to its decision “is very significant.”

“This Ninth Circuit ruling will likely encourage other courts to engage with the issue of whether Windsor suggests some heightened form of scrutiny,” NeJaime said. “More concretely, it will directly influence the challenge to Nevada’s marriage law currently before the Ninth Circuit; whether sexual orientation merits heightened scrutiny for federal equal protection purposes has been an issue throughout that case, and the district court had decided that it did not.”

Still, NeJaime said the Ninth Circuit’s decision to draw on the DOMA decision to apply heightened scrutiny “will likely be proven controversial” because U.S. Associate Justice Anthony Kennedy never explicitly invoked the level of scrutiny in his ruling.

The high-profile case involving sexual orientation before the Ninth Circuit is Sevick v. Sandoval, the challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage.

Jon Davidson, Lambda’s legal director, said the ruling will have “a very significant impact” on the court’s examination of the Nevada marriage case.

“The Ninth Circuit’s ruling that sexual orientation discrimination must be given heightened scrutiny is further proof of the progress we are making in convincing courts that the Constitution affords LGBT people meaningful protections against government-imposed inequality,” Davidson said.

Opponents of the case, known as the Coalition for the Protection of Marriage, filed their brief before the Ninth Circuit on the same day as the jury selection ruling, arguing in an untimely manner that “there is no legal or factual basis for deploying ‘heightened scrutiny’ in this case.”

But the Nevada marriage case isn’t the only lawsuit pending before the Ninth Circuit. Other cases in the jurisdiction are the recently filed challenge against Arizona’s ban on same-sex marriage and the case against Oregon’s ban, which is currently before  gay U.S. District Judge Michael McShane.

Additionally, the challenge against the Arizona law signed by Gov. Jan Brewer rescinding domestic partner benefits for gay state employees is also before the Ninth Circuit. The court’s use of heightened scrutiny in the juror case could influence the decision in any of these cases.

Davidson added the application of heightened scrutiny in the juror case also has implications on gay government workers seeking relief if they feel they’ve faced discrimination on the job.

“If any federal, state, or local government agency or official in any of the nine states in the Ninth Circuit discriminates against someone based on their sexual orientation, they will have the burden of demonstrating that their action substantially furthers an important and legitimate government goal,” Davidson said. “They will not be able to rely on hypothetical or after the fact justifications.”

Despite the celebration over the standard of review in the case, LGBT advocates are also celebrating the ruling in its own right for establishing non-discrimination against gay people in the juror selection process.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, commended the Ninth Circuit.

“Jury service is a fundamental civic duty,” Kemnitz said. “LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspends their usual daily activity to be part of the rule of law.”

Legislation known as the Jury ACCESS Act, which would institute a rule of non-discrimination for gay jurors in federal courts, is also pending before Congress. Last year, it was incorporated into the Senate version of the fiscal year 2014 financial services appropriations bill, but it’s technically no longer pending because Congress passed omnibus spending legislation instead.

Sen. Jeanne Shaheen (D-N.H.), chief sponsor of the legislation, commended the Ninth Circuit for issuing the ruling, but said more action is needed from Congress.

“There is no place for discrimination in our judicial system, and it should be the right and obligation of every citizen to sit on a jury,” Shaheen said. “The appellate court’s ruling is an important step, but I will continue working to make sure no American can be excluded from this important civil responsibility on the basis of their sexual orientation or gender identity.”


Anti-gay forces changing tactics on marriage

Brian Brown, National Organization for Marriage, gay news, gay politics dc

NOM President Brian Brown criticized Eric Holder’s extension of rights to same-sex couples. (Washington Blade file photo by Michael Key)

Move over Federal Marriage Amendment: anti-gay forces are focusing on new ways to halt the advancement of marriage equality — and are already seeing some success at the state level.

As more states legalize same-sex marriage and efforts to pass a U.S. constitutional amendment prohibiting it have faded, the focus has shifted to containing federal recognition to marriage equality states and to advancing religious exemption bills allowing for discrimination against same-sex couples.

Outrage prompting calls for these measures was seen just last weekend when U.S. Attorney General Eric Holder announced he would extend federal recognition of same-sex marriages to programs under the Justice Department’s purview.

The changes were intended to comply with the U.S. Supreme Court’s decision last year against the Defense of Marriage Act. Among other things, they would allow married same-sex couples to file jointly for bankruptcy. In addition, spouses won’t be forced to testify against each other.

Mainstream and conservative media outlets jumped on the development — the Washington Post called the change “sweeping” — while anti-gay groups expressed outrage over Holder’s extension of these rights to same-sex couples in states without marriage equality.

Brian Brown, president of the anti-gay National Organization for Marriage, said Holder’s decision was the latest in a series of moves that “undermine the authority and sovereignty of the states” with respect to marriage.

“The American public needs to realize how egregious and how dangerous these usurpations are and how far-reaching the implications can be,” Brown said. “The changes being proposed here to a process as universally relevant as the criminal justice system serve as a potent reminder of why it is simply a lie to say that redefining marriage doesn’t affect everyone in society.”

To limit federal recognition of same-sex marriages to marriage-equality states, anti-gay groups are championing legislation in the U.S. House known as the State Marriage Defense Act, which would prohibit the federal government from recognizing a same-sex marriage in a state that doesn’t allow gay nuptials.

Tony Perkins, president of the anti-gay Family Research Council, voiced support for the State Marriage Defense Act immediately after Holder’s announcement.

“Attorney General Holder’ s announcement — like his recognition of same-sex ‘marriages’ in Utah despite the Supreme Court granting a stay of the District Court decision overturning that state’s definition of marriage — illustrates the importance of congressional action to pass the State Marriage Defense Act (H.R. 3829), introduced by Rep. Randy Weber (R-Texas),” Perkins said.

Neither the Family Research Council nor the National Organization for Marriage responded to the Washington Blade’s requests to comment on whether calls for this legislation represented a shift in focus away from the Federal Marriage Amendment.

Religious exemption measures emerge

Meanwhile, at the state level, new initiatives are emerging to establish carve-outs to civil rights and marriage equality laws to enable individuals or businesses to discriminate against LGBT people and their marriages on religious grounds.

One such initiative underway in Oregon is concurrent with Oregon United for Marriage’s work to bring the issue of marriage equality to voters on Election Day this year. Anti-gay groups are working to place on the ballot at the same time a measure to allow florists, bakers and other businesses to refuse to participate in these weddings on religious grounds.

Although it’s illegal in Oregon to discriminate on the basis of sexual orientation, the proposal would enable such business to discriminate against gay couples. To qualify for the ballot, anti-gay groups must submit 116,284 valid signatures of Oregon residents by July 3.

Mike Marshall, Oregon United for Marriage’s campaign manager, told the Washington Blade the religious exemption ballot initiative is a big fear because it could have an impact on the marriage equality campaign.

“The other side knows that when we shift the debate away from love and commitment to protecting religious freedom that you see support go down for marriage three to four percent, and that’s within the margin of victory for us,” Marshall said. “Instead of putting their resources into defeating our campaign, they’re creating a second campaign to shift the focus of the debate, and by doing that, at least carve some level of discrimination that they engage in.”

Marshall said if the religious exemption measure passes, the LGBT community would be faced with similar measures in every state over the next 10 years.

Religious exemption measures are becoming more common in state legislatures. In Kansas, the state legislature approved on Wednesday by 72-49 vote a bill that would allow state residents to refuse services to gay couples related to same-sex weddings. In Arizona, a House committee approved a broad religious freedom bill to allow individuals and the businesses they own to refuse to provide services based on their religious beliefs.

Similar measures have popped up in Idaho, Mississippi, Ohio, Oklahoma and Maine (although the Maine measure was recently voted down in committee). Measures specifically allowing discrimination against same-sex marriage and gay people, likes the ones in Oregon and Kansas, have come up in South Dakota.

Sarah Warbelow, state legislative director for the Human Rights Campaign, said passage of the bills could cause problems, such as allowing a county clerk to refuse to grant a marriage license.

“The state would still have to find someone to fill in, but it could make it more cumbersome for same-sex couples, not to mention hugely embarrassing,” Warbelow said. “No one should have to stand in line on the penultimate day of their marriage relationship only to find they have to go through a series of county clerks, one after another.”

The religious exemption measures aren’t exclusively found in the states. Rep. Raul Labrador (R-Idaho) in the U.S. House and Sen. Mike Lee (R-Utah) in the Senate have introduced legislation known as the Marriage and Religious Freedom Act, which would prohibit the federal government from discriminating against organizations that exercise “religious conscience” against same-sex marriage.

Raúl Rafael Labrador, Raul Labrador, Idaho, United States House of Representatives, Republican Party, gay news, Washington Blade

Rep. Raúl Rafael Labrador (R-Idaho) has introduced the Marriage and Religious Freedom Act. (Washington Blade file photo by Michael Key)

Rose Saxe, a staff attorney at the American Civil Liberties Union’s LGBT Project, said they’re meant to enable discrimination against gay couples seeking to wed in the states at a later point in time in anticipation of that ruling.

“But the ones that are explicitly anti-gay, we see those as as sort of ‘Plan B’ from the other side in the sense that they see marriage is coming and they’re trying to ensure that even in states where we don’t yet have marriage or robust non-discrimination laws that can preemptively enshrine the right to discriminate,” Saxe said.

Isolated anti-gay incidents driving new tactics

Movement on these bills comes in the aftermath of isolated situations where business owners were accused of acting wrongfully by refusing services for same-sex weddings.

One prominent such incident took place in Colorado, where a judge in December determined a Lakewood bakery known as Masterpiece Cakeshop acted unlawfully by refusing to sell a wedding cake to a gay couple.

A similar incident occurred in Washington State, where Arlene’s Flowers owner Baronelle Stutzma refused to sell flowers to a gay couple and is now facing a lawsuit from the state and couple’s attorney. In Vermont, a resort that was sued in 2011 for refusing to host a lesbian couple’s wedding reception agreed to settle by paying $30,000 in damages.

In addition to invoking the wrath of anti-gay groups, these situations sparked concerns among libertarian-minded supporters of LGBT rights on social media over the perceived unfairness of requiring a business to recognize same-sex marriage.

Saxe said the religious exemption measures have begun to “pop up with more frequency” before state legislatures in the wake of media coverage of these incidents.

“I think those stories are part of the justification,” Saxe said. “In both South Dakota and Kansas, we saw the supporters of this legislation saying that this was about protecting the rights of businesses to not provide wedding services, but then the bills themselves…said any person could refuse to respect any marriage, which is not all about wedding services.”

The majority of the American public opposes making exemptions to accommodate these situations. According to a poll last year conducted by the Human Rights Campaign and the Third Way, 67 percent of voters are opposed to laws that allow businesses to discriminate against gay couples based on religious objections. Further, 56 percent of respondents thought it was already illegal for business owners in their state to refuse service to someone for being gay, although 30 percent were wrong because no such law exists in their state.

It’s also possible that the U.S. Supreme Court could take up a case related to one such isolated objection to a same-sex wedding and issue a sweeping decision enabling discrimination against same-sex couples.

Pending before the U.S. Supreme Court is the appeal of a decision by the New Mexico Supreme Court in the case of Elaine Photography v. Vanessa Willock, which found that the husband-and-wife owned photography business violated New Mexico’s civil rights law by declining to shoot Willock’s commitment ceremony in 2006, even though it was over religious beliefs. (Same-sex marriage at the time wasn’t yet legal in New Mexico.)

Anti-gay groups late last year filed an appeal to the U.S. Supreme Court on the basis that the New Mexico court decision violated Elaine Photography’s rights under the First Amendment’s ban on compelled speech.

Jon Davidson, legal director at Lambda Legal, said he thinks it’s “less likely” the court will take up the case because petitioners asked for a review of rejection of the photographer’s “compelled speech”and not free exercise of religion.

“Given this narrowing of the issue presented, I think it is somewhat less likely that the Supreme Court will grant review, because the issue presented affects fewer people and entities than a religious freedom claim would,” Davidson said.

Although it’s hard to say what action the Supreme Court will take, it may issue writ of certiorari to take up the case this year. If so, a decision would be expected before the court adjourns in June.


N.Y. archbishop uncomfortable with civil unions

NBC's "Meet the Press" interviews" New York archbishop Timothy Dolan (Screenshot via NBC News).

NBC’s “Meet the Press” interviews” New York archbishop Timothy Dolan (Screenshot via NBC News).

Despite recent comments from Pope Francis suggesting he may be open to the idea of civil unions if not same-sex marriage, one of the more influential U.S. bishops in his church doesn’t share the same view.

New York Archbishop Timothy Dolan, who’s known for his conservative views and opposition to same-sex marriage, said he’d be uncomfortable with even civil unions when asked about the issue on NBC’s “Meet the Press” by host David Gregory.

“If we water down that sacred meaning of marriage in any way, I worry that not only the church would suffer, I worry that culture and society would,” Dolan said.

Dolan also rejected the notion that Francis was expressing support for the legalization of such agreements in his comments to an Italian magazine that were widely reported last week.

“It wasn’t as if he came out and approved them,” Dolan said. “But he…in a sensitivity that has won the heart of the world, he said, “Rather than quickly condemn them, let’s…just ask the questions as to why that has appealed to certain people.”

According to CNN, Francis said during an interview with Corriere della Sera that he remains opposed to same-sex marriage, but added “we have to look at different cases” and civil unions could “provide financial security to cohabitating couples.” That’s along the lines of the support Francis expressed for civil unions when he was Archbishop of Buenos Aires prior to the legalization of same-sex marriage in Argentina in 2010.

Evan Wolfson, president of Freedom to Marry, chided Dolan for his remarks, saying they were contrary to the position of the pope.

“Since Day 1 of this papacy, Cardinal Dolan has sought to minimize the teachings of Francis and the new and welcome message of inclusion, but the Cardinal is out of step with the Pope, out of step with the great majority of American Catholics who support the freedom to marry, and out of step with the true values of love and the Golden Rule,” Wolfson said.

The remarks on civil unions from both Dolan and Francis come at a time when virtually no jurisdiction is debating them as states and countries are instead moving toward marriage equality for relationship recognition for gay couples.

Dolan’s main point during his “Meet the Press” was that Francis was shrewdly adapting the message of the church in a time when public sentiment is changing, but church doctrine remains the same.

“And so Francis is reminding us, look, if we come across as some crabby, nay saying shrill, we’re not gonna win anybody. If we come across as a loving, embracing holy mother church who says, “Come on in. We love you. We need you. We want you. And once you get to know us, then maybe we can invite you to the conversion of heart that is at the core of the gospel. And then maybe we can talk about changing behavior. That’s a very effective pedagogy.”

Dolan was also asked for his views on the coming out announcement of Michael Sam, the Missouri collegiate defense lineman who could be the first openly gay person to play in the NFL.

“Good for him,” Dolan said. “I would have no sense of judgment on him. God bless ya. I don’t think the same bible that…teaches us well about the virtues of chastity and the virtue of fidelity and marriage also tells us not to judge people. So I would say, ‘Bravo.’”

The exchange between Gregory and Dolan on civil unions follows:

DAVID GREGORY: Do you imagine the church might open the way to accepting civil unions?

CARDINAL DOLAN: He mentioned– I haven’t see– I’m– I’m as eager as you are to– read the– the full extent of that interview. And if I saw the reports accurately, they– he didn’t come right out and say he was for them. Once again, in an extraordinarily– sincere, open, nuanced way, he said, “I know that some people in some states have chosen this. We need to think about that and look into it and see the reasons that have driven them.”

It wasn’t as if he came out and approved them. But he– he just in– in a sensitivity that has won the heart of the world, he said, “Rather than quickly condemn them, let’s see if– let’s– let’s just ask the questions as to why that has appealed to certain people–”

DAVID GREGORY: Would that make you uncomfortable?

CARDINAL DOLAN: I– it would. It would, in a way, David. Because I don’t think– marriage, between– one man and one woman forever leading to life and love, that’s not something that’s just a religious, sacramental concern. You bet it is that, and– and we– that’s how god has elevated it, to making a sacrament.

But it’s also the building block of society and culture. So it belongs to culture. And if– and if we water down that sacred meaning of marriage in any way, I worry that not only the church would suffer, I worry that culture and society would.


Supreme Court stays Utah same-sex marriages

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court has denied a stay on Utah same-sex marriages (Washington Blade file photo by Michael Key).

The U.S. Supreme Court approved on Monday a stay request on same-sex marriages in Utah, prohibiting gay couples from continuing to wed in the Beehive State as litigation proceeds throughout the courts.

According to the court order, justices ruled to grant the application of stay filed last week by attorneys for Utah Gov. Gary Herbert and Attorney General Sean Reyes in the case of Kitchen v. Reyes.

“The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit,” the order states.

The vote of the full court indicates U.S. Associate Justice Sonia Sotomayor, who’s response for stay requests in the Tenth Circuit, referred the matter to the entire to the entire court instead of deciding the issue for herself. How each justice voted on the matter isn’t disclosed, but at least five justices must have voted in the affirmative to grant a stay.

The district court that ruled in favor of marriage equality in Utah on Dec. 20 and the U.S. Tenth Circuit Court of Appeals had already denied stay requests from Utah. But as the highest court in the country, the U.S.  Supreme Court has the final word on the stay, so same-sex couples have no further recourse in the matter.

State officials asked the Supreme Court to halt the same-sex marriage in Utah on the basis their continuation would cause financial harm to the state and the couples themselves if their unions were deemed invalid at at a later time. Private attorney Monte Stewart, a Utah-based lawyer and known opponent of same-sex marriage, had signed on to the brief as counsel of record.

Although the Supreme Court has granted the stay request, the litigation that brought marriage equality to Utah hasn’t been resolved and is pending before the Tenth Circuit.

The appellate court has agreed to take up the issue on an expedited basis. State officials’ opening brief must be filed by Jan. 27. The response from attorneys for gay couples is due Feb. 18, and state officials have a chance to respond to that filing by Feb. 25.

James Magleby, one of the attorneys at Magleby & Greenwood PC representing the three plaintiff couples in the lawsuit, said the decision by the Supreme Court was “obviously disappointing,” but predicted in the end the Tenth Circuit would bring justice to same-sex couples seeking to marry.

“This temporary stay has no bearing on who will win on appeal,” Magleby said. “We look forward to defending Judge Shelby’s decision in the Tenth Circuit. We were confident when we filed the case in 2013, we were confident when we presented the arguments to the district court, and we remain equally – if not more – confident about our defense of marriage equality before the Tenth Circuit.”

LGBT advocates also expressed disappointment with the decision by the Supreme Court, but said they believe it would be only temporary.

Chad Griffin, president of the Human Rights Campaign, said in a statement the stay in Utah same-sex marriages is “disappointing,” but predicted marriage equality would prevail in the end.

“We still live in two Americans where full equality is within reach in one, and another where even basic protections are non-existent,” Griffin said. “As the marriage equality map expands, history is on our side and we will not rest until where you live is not a barrier to living your dreams.”

John Mejia, legal director of the American Civil Liberties Union of Utah, said in a statement Utah should continue to recognize same-sex marriages already performed in the state as valid.

“The huge response that we have seen since the federal court’s ruling shows how important the freedom to marry is in the state of Utah,” Mejia said. “Though future marriages are on hold for now, the state should recognize as valid those marriages that have already been issued, and those couples should continue to be treated as married by the federal government.”

But at least one advocate against same-sex marriage was happy with the decision.

Brian Brown, president of the anti-gay National Organization for Marriage, praised the Supreme Court as he took a swipe at U.S. District Judge Robert Shelby for issuing the ruling in the first place.

“The actions of this activist judge are an affront to the rule of law and the sovereign rights of the people of Utah to define marriage,” Brown said. “Shelby has attempted to twist what the Supreme Court ruled in the Windsor decision – that states have the right to define marriage – and turn it into the exact opposite conclusion. It’s gratifying that the US Supreme Court has decided to stop this nonsense and allow the state of Utah the time to reverse it on appeal.”


ENDA lands new Republican co-sponsor

Michael Grimm, New York, United States House of Representatives, Republican Party, gay news, Washington Blade

Rep. Michael Grimm (R-N.Y.) has become a co-sponsor of ENDA (Photo public domain).

A new House Republican has signed on as a co-sponsor to the Employment Non-Discrimination Act as LGBT advocates continue to push for a vote in the Republican-controlled chamber, the Washington Blade has learned.

Rep. Michael Grimm (R-N.Y.), who represents Staten Island and parts of Brooklyn in Congress, elected to co-sponsor the bill Monday, according to sources familiar with the legislation.

Rep. Jared Polis (D-Colo.), who’s gay and lead sponsor of ENDA, commended Grimm for supporting the bill, which would bar employers from discriminating against or firing workers based on their sexual orientation or gender identity.

“I am happy to welcome Rep. Grimm as the 200th cosponsor of the bipartisan Employment Non-Discrimination Act,” Polis said. “This is common sense legislation that is supported by a majority of Americans and was passed overwhelmingly by the United States Senate. I look forward to working with Rep. Grimm and all of the co-sponsors on both sides of the aisle to pass this bill and protect all Americans from discrimination in the work place.”

Grimm’s office didn’t immediately respond to the Blade’s request to comment on the New York Republican’s decision to sign on as an ENDA supporter.

Counting Polis, Grimm’s support brings the total number of sponsors in the House to 201. A total of 218 votes is necessary to pass legislation in the chamber.

Grimm is the sixth Republican co-sponsor of ENDA. The other five are Reps. Ileana Ros-Lehtinen (R-Fla.), Richard Hanna (R-N.Y.), Charles Dent (R-Pa.), Jon Runyan (R-N.J.) and Chris Gibson (R-N.Y.).

Elected during the Republican wave in 2010, Grimm is generally looked upon as having an unfavorable record on LGBT issues. The Human Rights Campaign gave him a rating of “0″ in the latest congressional scorecard.

A former FBI agent who served in the 1990s Persian Gulf War as a Marine, Grimm is an opponent of same-sex marriage. He expressed his opposition in 2011 when the New York state legislature was preparing to legalize gay nuptials.

“I believe, by definition, that marriage is between a man and a woman, just as President Clinton did in 1996 when he signed the Defense of Marriage Act into law, defining it as such,” Grimm said.

Still, beyond his decision to back ENDA, he’s a co-sponsor of the Safe Schools Improvement Act, legislation that would require schools to develop to policies against bullying, including the discrimination and harassment of LGBT students.

Christian Berle, legislative director for Freedom to Work, said Grimm’s co-sponsorship of ENDA reflects growing Republican support for the legislation.

“We applaud Congressman Grimm for joining the growing number of Republicans supporting LGBT workplace protections, Freedom to Work along with Log Cabin Republicans have been lobbying broadly within the House GOP Conference and we hope to build momentum with more ENDA supporters in the weeks and months to come,” Berle said.

But Grimm also signs on as a co-sponsor to ENDA as he’s facing additional challenges and is being investigated for possible corruption.

The House Ethics Committee is deferring an investigation into Grimm for possible campaign finance violations to the Justice Department, which is conducting a criminal probe. The New York Daily News reported earlier this month Grimm may have used “donor swapping” to skirt fundraising limits.

The Senate last year already passed ENDA on a bipartisan basis by a 64-34 vote. Supporters have said the legislation already has the votes to pass the House, but House Speaker John Boehner (R-Ohio) has continually said he opposes the legislation when asked if he’ll bring it up for a vote.

Polis has previously said the best way to encourage Boehner to bring ENDA to a vote is adding additional Republican co-sponsors to the bill. Boehner’s office didn’t immediately respond to a request to comment on whether Grimm’s sponsorship changes things in terms of a possible House vote.


Court rules gay couples can marry now in Chicago area

Vernita Gray (left) and Patricia Ewert were the first same-sex couples in Illinois (Photo courtesy Lambda Legal).

Vernita Gray (left) and Patricia Ewert became the first gay couple to wed in Cook County.(Photo courtesy Lambda Legal).

A federal court in Illinois ruled on Friday gay couples can marry immediately in the Chicago-area Cook County without waiting for the marriage equality law to take effect in June.

Meanwhile, LGBT advocates behind the lawsuit are interpreting the decision to mean clerks across the state should begin granting marriage licenses to same-sex couples.

In a brief four-page order, U.S. District Judge Sharon Johnson Coleman, an Obama appointee, says Cook County can no longer prohibit gay couples from marrying because the marriage ban violates the Fourteenth Amendment to the U.S. Constitution.

“There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry,” Coleman writes.

As Coleman notes, “there is no opposition” to the ruling because Cook County Clerk David Orr and Illinois Attorney General Lisa Madigan weren’t defending the marriage law in court. Both Orr and Madigan filed briefs in support of the plaintiff same-sex couples in the case.

Although Gov. Pat Quinn signed into law a bill legalizing same-sex marriage in Illinois, the measure won’t take effect until June.

The class-action lawsuit, Lee v. Orr, was filed by Lambda Legal and ACLU of Illinois of behalf of same-sex couples seeking to wed before that time in Cook County. The named plaintiffs in the lawsuit — Elvie Jordan and Challis Gibbs as well as Ronald Dorfman and Ken Ilio — are facing terminal illness.

In her ruling, Coleman invokes the legacy of civil rights leader Martin Luther King, Jr., to explain her decision to allow gay couples in Cook County to wed immediately.

“Since the parties agree that marriage is a fundamental right available to all individuals and should not be denied, the focus in this case shifts from the ‘we can’t wait for the terminally ill individuals to ‘why should we wait’ for all gay and lesbian couples who want to marry,” Coleman writes. “To paraphrase Dr. Martin Luther King, Jr., the time is always ripe to do right.”

Bernard Cherkasov, CEO of Equality Illinois, praised Coleman for a ruling that he said would bring justice to thousands of same-sex couples.

“Tens of thousands of Illinois couples have been waiting for a long time, some for decades, for their love, commitment and marriage to be recognized,” Cherkasov said. “This day – and the opportunity to finally get married – could not have come sooner. We congratulate all of the couples and their families, and the people of Illinois on this significant day.”

Orr said in a statement the Bureau of Vital Records would be open an extra two hours on Friday until 7 p.m. to accommodate couples seeking to wed in the wake of the court order.

“I’m thrilled same-sex couples who want to get married won’t have to wait any longer,” Orr said. “We are very excited to celebrate this historic milestone with every loving couple from today onward.”

According to Cook County, marriage licenses are valid from the day after issuance and for 60 days, so couples that obtain a marriage license on March 1 may get married between March 2 and April 30.

Moreover, the $60 license fee will be waived for couples already in a civil union. Couples that wish to convert their prior civil union date to a marriage will have to wait until June 1 because it was not addressed in Coleman’s order.

There are differing accounts about the scope of the opinion. Coleman writes her ruling only applies to Cook County because of the nature of the lawsuit.

“Although this court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment Equal Protection Clause on its face, this finding can only apply to Cook County based on the posture of the lawsuit,” Coleman said.

But LGBT advocates are interpreting the ruling differently and say clerks across Illinois should start affording marriage licenses to same-sex couples.

Erik Roldon, a Lambda spokesperson, said no clerk in Illinois has authority to enforce the marriage ban in the aftermath of the decision.

“The law was declared facially unconstitutional,” Roldan said. “That means there are no circumstances under which it can be enforced – in Cook or elsewhere.”

Edwin Yohnka, a spokesperson for the ACLU of Illinois, shared that assessment of the ruling.

“The court found the current marriage ban to be unconstituional,” Yohnka said. “We would hope that all clerks would read that decision. If they do, we believe that they would not want to be in the position of enforcing a law that has been found unconstitutional.”

Gay couples that marry as a result of the court decision would not be the first to do so in Illinois. Vernita Gray and Patricia Ewert married in Cook County in November as a result of a federal court saying they should be afforded a marriage license immediately because Gray has been diagnosed with terminal breast cancer.


Nearly 200 lawmakers seek action from Obama for LGBT workers

Steny Hoyer, Maryland, United States House of Representatives, gay news, Washington Blade, Democratic Party, U.S. Congress

House Minority Whip Steny Hoyer (D-Md.) was the highest-ranking congressman to call for the ENDA executive order. (Washington Blade photo by Michael Key)

As legislation to protect LGBT workers from discrimination continues to languish in the U.S. House, an unprecedented number of nearly 200 lawmakers on Tuesday — including members of House Democratic leadership — called on President Obama to take administrative action.

In a letter dated March 18, 148 House members and 47 senators — making for a total of 195 lawmakers — urged Obama to sign an executive order barring federal contractors from discriminating on the basis of sexual orientation and gender identity as part of his plan for a “Year of Action” in 2014.

“As we continue to work towards final passage of the Employment Non-Discrimination Act (ENDA) with strong bipartisan support, we urge you to take action now to protection millions of workers across the country from the threat of discrimination simply because of who they are or who they love,” the letter says. “We are committed to doing all that we can in Congress to get ENDA to your desk this year; however, there is no reason you cannot immediately act by taking this important step.”

The letter says “time is of an essence” for a signature on the executive order because even when that happens, a process that “will take many months, if not longer” to implement the directive fully will be necessary.

In the House, the letter was circulated by the LGBT Equality Caucus along with Reps. Frank Pallone (D-N.J.) and Lois Capps (D-Calif.), while ENDA’s chief sponsor in the Senate Jeff Merkley (D-Ore.) circulated the letter in that chamber with Sens. Tammy Baldwin (D-Wis.) and Tom Harkin (D-Iowa).

It’s not the first time members of Congress have penned their names to a letter calling on Obama to take administrative action to protect LGBT workers from discrimination. In 2011, Pallone and Capps led an effort to sign a similar letter, which at the time was signed by 72 House members. In 2013, they circulated another letter on the issue signed by 110 House members as Merkley submitted yet another missive signed by 37 senators.

The series of letters from lawmakers over the course of recent years — in addition to regular questioning on the issue for White House Press Secretary Jay Carney — have been to Obama on the executive order as LGBT advocates have pressed for it for some time.

But the latest missive has more lawmakers calling for the executive order than the 2013 letter and, for the first time, has members of Democratic leadership as signatories: House Minority Whip Steny Hoyer (D-Md.) and Assistant Minority Leader Jim Clyburn (D-S.C.). The Blade first reported Hoyer would sign the letter on Monday.

Although House Minority Leader Nancy Pelosi has publicly said she supports the executive order as far back as 2011 she didn’t sign the letter. Drew Hammill, a Pelosi spokesperson, said his boss rarely signs group letters and would raise the issue in a private missive to Obama.

Also missing from the letter is Senate Majority Leader Harry Reid (D-Nev.), who also gave his green light for the potential directive in January. Reid’s office indicated that he doesn’t typically sign member letters.

Rep. Debbie Wasserman Schultz (D-Fla.), chair of the Democratic National Committee, also didn’t pen her name to the letter. Last week, sources told the Blade she had discouraged members from signing previous iterations of the letter, but her office called that assertion a “bald-faced lie.” She hasn’t articulated support for the executive order.

Not a single Republican signed the letter. Not one of the 10 Republicans who voted for the Employment Non-Discrimination Act in the Senate late last year or any of the six GOP co-sponsors of ENDA in the House penned their name to the missive.

Tico Almeida, president of Freedom to Work, said his organization helped to secure signatures for the letter — and hopes it’ll be the last time the effort is necessary.

“This week, we collaborated with the Equality Caucus for the third time to collect signatures on the 2014 letter to President Obama on the same topic,” Almeida said. “These year-after-year delays from the White House are making this all start to feel like Bill Murray’s ‘Groundhog Day,’ and I really hope we don’t have to push for yet another congressional letter to President Obama in 2015 or 2016 or a letter to President Hillary Clinton in 2017. It’s long past time for President Obama to keep his word and create LGBT workplace protections at the companies that profit from taxpayer-funded contracts.”

The White House has responded to other letters like this one in the past by saying it has no updates to provide on a “hypothetical” executive order protecting LGBT workers. It didn’t respond to comment on the latest letter.

Last week, Carney reiterated Obama’s support for the Employment Non-Discrimination Act when asked about the executive order.

“Our view is that Congress ought to pass the Employment Non-Discrimination Act,” Carney said. “I don’t have any updates for you on possible executive orders. What we’re focused on is on a legislative remedy that would be more comprehensive and that has already seen progress in Congress. So I don’t have a view to express on that particular issue.”

Lawmakers who organized the signature-gathering for the letter in both the House and Senate issued their own words on the importance of Obama signing the executive order.

Merkley said signing the executive order would help ensure LGBT people have access to equal opportunity in the workplace.

“All Americans deserve fairness in the workplace,” Merkley said. “There is no reason to wait any longer to extend non-discrimination policies to federal contractors and protect millions of Americans from being fired for who they are or who they love.”

Capps said in a statement she hopes Obama “will immediately sign an executive order” to protect LGBT workers against discrimination.

“This issue has lingered for far too long and this year, in the president’s year of action, he should take this opportunity to expand employment protections,” Capps said. “Doing so would be a significant and meaningful advancement for LGBT Americans—legally, politically, and culturally. With workers across the country facing discrimination every day, the time is now to make sure workplace discrimination isn’t supported by taxpayer funds.”

As Capps observes, the Williams Institute published a report finding that the executive would extend non-discrimination protections to the estimated 16.5 million employees at federal contractors. (The number of people within this population who are LGBT is estimated to be smaller and between 400,000 and 600,000 people.)

Capps added that she been pushing Obama to sign the executive order for years and “will not stop pushing this issue — it is time for the president to act.”


Kerry says U.S. ‘deeply concerned’ about Nigeria anti-gay law

Gay News, Washington Blade, John Kerry

Secretary of State John Kerry says the United States is “deeply concerned” about the Nigeria anti-gay law (photo public domain).

Secretary of State John Kerry said Monday the United States is “deeply concerned” about a draconian anti-gay measure signed into law in Nigeria that includes punishments of up to 14 years in prison.

“The United States is deeply concerned by Nigeria’s enactment of the Same Sex Marriage Prohibition Act,” Kerry said. “Beyond even prohibiting same sex marriage, this law dangerously restricts freedom of assembly, association, and expression for all Nigerians.”

According to Reuters, Nigerian President Goodluck Jonathan signed the measure on Monday. It contains penalties of up to 14 years in prison and bans not only same-sex marriage and same-sex “amorous relationships,” but also membership in LGBT rights groups.

Kerry’s said the Nigeria law is “inconsistent” with country’s international legal obligations and “undermines” democratic reforms as well as human rights protections within Nigeria’s constitution.

“People everywhere deserve to live in freedom and equality,” Kerry concludes. “No one should face violence or discrimination for who they are or who they love. We join with those in Nigeria who appeal for the protection of their fellow citizens’ fundamental freedoms and universal human rights.”

The national assembly had passed the measure last May, but the Nigerian president reportedly had delayed signing it into law.

A White House official said Kerry’s statement on the anti-gay law “reflects our views,” but referred to the State Department for more information.

Kerry’s full statement follows:


Deep Concern with Nigeria’s Enactment of the Same Sex Marriage Prohibition Act


The United States is deeply concerned by Nigeria’s enactment of the Same Sex Marriage Prohibition Act.

Beyond even prohibiting same sex marriage, this law dangerously restricts freedom of assembly, association, and expression for all Nigerians.

Moreover, it is inconsistent with Nigeria’s international legal obligations and undermines the democratic reforms and human rights protections enshrined in its 1999 Constitution.

People everywhere deserve to live in freedom and equality.  No one should face violence or discrimination for who they are or who they love.

We join with those in Nigeria who appeal for the protection of their fellow citizens’ fundamental freedoms and universal human rights.


It’s official: Aiken announces bid for Congress

Clay Aiken has officially announced his bid for Congress (Washington Blade file photo by Michael Key).

Clay Aiken has officially announced his bid for Congress. (Washington Blade file photo by Michael Key)

Following rumors he was planning a run, gay singer and “American Idol” runner up Clay Aiken on Wednesday officially announced his decision to run for Congress.

Aiken, a 35-year-old Raleigh native, declared in a video announcement his intent to run for North Carolina’s 2nd congressional district, which is currently occupied by Rep. Renee Ellmers (R-N.C.).

In the video, Aiken invokes his childhood, saying his mother had to flee from his abusive father and work long hours to support him growing up.

“School was the only chance I had to pull myself up, to achieve a dream I long held, to teach, to reach children like me and those who faced even more adversities than I did,” Aiken says. “More families are struggling today than at any time in our history, and here in North Carolina, we’ve suffered more than our fair share of pain.”

The Washington Blade first reported last month the singer was considering a run.

Aiken, who came out as gay in People magazine in 2008, isn’t the only Democrat in the race. Also pursuing the nomination is Keith Crisco, a former commerce secretary of North Carolina, and Toni Morris, a licensed professional counselor living in Fayetteville. The primary is May 6.

The Ellmers campaign didn’t immediately respond to the Washington Blade’s request for comment on the Aiken candidacy. But in the Raleigh-based News & Observer, Jessica Wood, an Ellmers campaign spokesperson, is quoted as dismissing Aiken, saying his “political views more closely resemble those of San Francisco than Sanford.”

As Matt Comer at GOQnotes observes, invoking “San Francisco” in political dialogue is often seen as code for attacking someone for being gay. GOQnotes reports that Dan Gurley, who’s gay and former head of the North Carolina Republican Party, contacted Wood to say she should be ashamed and reprimanded.

Josh Schwerin, a spokesperson for the Democratic Congressional Campaign Committee, focused on Ellmers when asked for a response to the Aiken candidacy.

“Congresswoman Ellmers’ out-of-touch record of voting to shut down the government while complaining about her taxpayer funded salary has left voters looking for an alternative,” Schwerin said.

In his video, Aiken criticizes Ellmers, saying she voted 21 times with Republicans in actions that led to the shutdown of the federal government and 10 times for spending cuts that hurt the military and military families.

“This is what’s wrong with Washington,” Aiken says. “That a congresswoman would go [to Washington] and vote against the best interests of North Carolina military families and those who depend on the military for their jobs. To do it when you know it’s wrong is even worse.”

Aiken, who became famous as a singer and Broadway performer, came in second place to Ruben Studdard in the 2003 season of American Idol. Using that appearance to advance his career, Aiken has sold more than six million copies of his albums.

But, as Aiken notes in his video, he’s engaged in work other than his music career and was a special-education teacher. Tapped as a national ambassador for the United States Fund for UNICEF in 2004, Aiken has also travelled to Afghanistan, Indonesia, Uganda, Mexico, Kenya and Somalia as part of aid missions.

“The years I spent as a special education teacher for students with autism was my first window into the difference that a person can make in someone’s life,” Aiken says. “Then it was the years I spent with UNICEF traveling to places of heartbreak, like the war zones of Afghanistan and Somalia where families had been torn apart and hope was sometimes hard to find.”

No stranger to LGBT activism, Aiken came out against Amendment One, a constitutional amendment barring same-sex marriage in North Carolina, when the measure came before voters in the state in 2012. Aiken also spoke at a congressional briefing of the Gay, Lesbian & Straight Education Network on behalf of anti-bullying bills known as the Student Non-Discrimination Act and the Safe Schools Improvement Act.

Despite Aiken’s entry into the race, political observers continue to express doubts over whether he can pull off a win given the conservative nature of the district, which includes the Raleigh suburbs, and President Obama’s lagging poll numbers.

Among them is David Wasserman, House editor of the Cook Political Report, who said Aiken has “no chance” of pulling off a win in the district.

“He will make the race much more interesting, but there is still virtually no chance a Democrat — even a celebrity — can beat a GOP incumbent in such a solidly Republican, gerrymandered seat as long as President Obama’s approval ratings are what they are,” Wasserman said. “We continue to rate the race Solid Republican.”


Gay ambassador in the spotlight amid Ukraine crisis

Daniel Baer, United States Department of State, Bureau of Democracy, Human Rights and Labor, gay news, Washington Blade

Gay U.S. ambassador Daniel Baer is representing U.S. interests during the Ukraine crisis at the Organization for Security & Cooperation in Europe. (Washington Blade photo by Michael Key)

A gay U.S. ambassador is taking center stage in the crisis over Russia’s military incursion into Ukraine by representing American interests at the Organization for Security & Cooperation in Europe.

Daniel Baer, who was confirmed by the U.S. Senate in August to his seat at the Vienna-based international conference, has his work cut out for him in one of the most daunting foreign policy challenges faced by the Obama administration.

As widely reported, after turmoil in Ukraine leading to the ouster of the pro-Russian President Viktor Yanukovych, Russian military forces under the leadership of President Vladimir Putin occupied buildings, airports and other assets in Crimea for what he’s said is ensuring the safety of ethnic Russians living on the peninsula. Both the United States and the Ukraine government have deemed the incursion an act of invasion and occupation by Russian forces.

From his Twitter account, Baer has posted updates about efforts to mitigate the crisis, which include attending emergency meetings to deliver the U.S. call to send an international observer mission to Ukraine.

The OSCE was set up during the Cold War as a forum where the United States could raise human rights and security issues with countries aligned with the Soviet Union. After the Cold War, the OSCE has served as a pan-Atlantic forum now comprising 57 European, Asian and North American countries for conversations on conflict management and human rights, although the most recent crisis in Ukraine recalls the original purpose of the organization.

In his prepared remarks for an initial emergency meeting on Sunday, Baer said Putin is breaking various international agreements by intervening in Crimea, such as its 1994 Budapest Summit commitments that enabled the de-nuclearization of Ukraine.

“The effects on relations between the Russian Federation and every single participating state around this table, to which the Russian Federation has pledged its commitment to abide by principles of sovereignty and territorial integrity, will be profound,” Baer said.

Baer also lists the times Russian diplomats were critical of military incursions in the Middle East, Moldova, Bosnia and Herzegovina and Sri Lanka, saying Russia can’t selectively apply this principle to its foreign policy.

In response, the Russian government insists it has undertaken the incursion into Crimea out of concern for the Russian ethnic minority. But Baer asserts an international monitoring team would be an appropriate way to handle the situation.

“Now just a moment ago we heard from the delegate of the Russian Federation a repeat of their concerns about the protection of Russian citizens, the treatment of minorities, and the security of Russian military installations and personnel in Crimea,” Baer said. “An international monitoring mission is the right way to address these concerns.”

Following the meeting, Baer was photographed speaking with the media as he spoke about the U.S. call for an OSCE-led monitoring mission to Ukraine. According to Reuters, Baer told reporters the United states has won tentative support for a many members for a monitoring mission, including “openness” from the Russian delegation. Moscow has veto power on the OSCE.


Recently via Twitter, Baer said he’s hearing “worrying” multiple reports that paramilitaries are going house to house in Crimea and issuing threats if residents don’t attend pro-Russia rallies.

It should be noted that Baer is taking a lead role during the Ukraine crisis, but isn’t the top U.S. diplomat handling the situation. Victoria Nuland, assistant secretary of state for European and Eurasian Affairs, was also set to participate in the OSCE meetings along with Baer.

An initial emergency ambassadorial meeting of the 57 OSCE participating states called by the Swiss chairman took place Sunday. Following a special meeting Monday in which Nuland spoke for the United States, Baer said via Twitter yet another meeting was set for Wednesday “in response to Ukraine’s activation of Vienna Document Ch III mechanisms.”

Prior to his assignment as U.S. ambassador to OSCE, Baer was the State Department’s deputy assistant secretary for the Bureau of Democracy, Human Rights & Labor, where he took a lead role in shaping policy for international LGBT affairs. In his new post, Baer has moved to Vienna with his partner Brian Walsh.

Mark Bromley, chair of the Council for Global Equality, said Baer was “a strong and vibrant voice for human rights” at the bureau, so his role in mitigating the Ukraine crisis is reassuring.

“The OSCE was originally created to engage the former Soviet Union on human rights issues, and so it’s fitting that Dan is representing our country there now as we come – once again – to a confrontation with Russia over human rights with a leader who looks increasingly like a Soviet-era dictator,” Bromley said.

Recalling the anti-gay laws — including a controversial law banning anti-gay propaganda to minors — already put in place under Putin’s regime, Bromley said Putin has shown his targets for persecution aren’t limited to his own LGBT citizens.

“It’s important that we have a strong ambassador at the OSCE, and one who, as a gay American, understands that persecution of just one small minority in a country rarely ends with that one group, but, as history has shown repeatedly, almost always ends with a more aggressive assault on the rights of a broader group of people,” Bromley said.