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Months after court ruling, DOMA issues remain unresolved

Eric Holder, United States Justice Department, Barack Obama Administration, Lincoln Memorial, the 50th Anniversary of the March on Washington, civil rights, gay news, Washington Blade

U.S. Attorney General Eric Holder has pledged to extend federal benefits to married gay couples to the furthest extent possible under the law. (Washington Blade file photo by Michael Key)

Ever since the Supreme Court ruled against the Defense of Marriage Act last year, the Obama administration has been rolling out on a continual basis new federal benefits for married same-sex couples — but access to some benefits remains uncertain months after the decision.

While the administration has afforded a preponderance of the 1,138 federal benefits of marriage to same-sex couples, other benefits — including Social Security, veterans and family leave benefits — are still in limbo for those living in non-marriage equality states. For these benefits, federal policy looks to the place of residence, not the place of celebration, in determining whether a person is married.

The policy of the Obama administration has been to expand benefits to married same-sex couples to the furthest extend possible under the law following the court decision against DOMA. That position was formalized last week in a memo from U.S. Attorney General Eric Holder extending certain federal benefits under the purview of the Justice Department to married gay couples.

“It is the Department’s policy, to the extent federal law permits, to recognize lawful same-sex marriages as broadly as possible, and to recognize valid in the jurisdiction where the marriage was celebrated,” Holder writes.

Thus far, the administration has extended numerous benefits to married same-sex couples related to taxes, immigration, federal employee benefits, employer-provided pensions and, most recently, the ability to refuse to testify against a spouse in federal court — even if these couples live in non-marriage equality states. The Justice Department has also ceased enforcement of a provision in Title 38, which governs veterans benefits, that independently defines marriage in opposite-sex terms.

But things get dicier when it comes to other benefits where the law governing them looks to the state law where a couple resides, rather than the state law where the couple was married in determining whether a marriage is legitimate. Does the spirit of the Supreme Court ruling against DOMA mean that these portions of these laws should also not be enforced, or are they so far removed from the ruling they require a legislative fix?

One such issue is with Social Security benefits. Although the Social Security Administration is processing retirement and survivor benefits for same-sex couples living in marriage-equality states, for the time being, it’s placing applications on hold for married same-sex couples living in places that don’t their recognize their union.

Kia Anderson, a Social Security spokesperson, said work coordinated with the Justice Department is still underway to determine whether her agency can recognize these same-sex marriages for benefits purposes.

“We are working with the Department of Justice to develop and implement policy and processing instructions on this issue,” Anderson said. “However, we encourage people to apply right away for benefits, even if they aren’t sure they are eligible. Applying now will protect against the loss of any potential benefits.”

Yet another benefit on hold for married same-sex couples living in non-marriage equality states is veterans benefits, which include disability benefits, survivor benefits and joint burial at a veteran’s cemetery for the spouses of former service members. As with Social Security law, a portion of veterans’ law, 103(c) of Title 38, looks to state of residence, not the state of celebration, to determine whether a couple is married.

Genevieve Billia, a spokesperson for the Department of Veterans Affairs, said her department is still reviewing the issue of these benefits with the Justice Department.

“VA is working closely with the Department of Justice to develop guidance to process cases involving same-sex spousal benefits, and to implement necessary changes swiftly and smoothly in order to deliver the best services to all our nation’s veterans,” Billia said. “Our commitment to provide all veterans and their families with their earned care and benefits will continue to be our focus as VA implements the Supreme Court’s decision in Windsor, and the president’s direction on Title 38.”

The continued enforcement of 103(c) of Title 38 to discriminate against gay couples has been a cause for concern for U.S. senators. Last month, seven senators — led by Sen. Mark Udall (D-Colo.) — called on the Obama administration to stop enforcing the law in a way that blocks gay veterans in same-sex marriages from receiving spousal benefits.

Stephen Peters, president of the American Military Partner Association, called the issue “a top concern” among veterans belonging to the LGBT military group.

“While we understand it takes time to review existing policies and laws in light of the Windsor decision, for the sake of our veterans and their families, our hope is that the administration will take swift action in extending full and equal VA benefits no matter what state the veteran and their family live in,” Peters said. “These veterans have earned these benefits and there is no valid reason why they should continue to be denied them.”

The American Military Partner Association has launched an online petition calling on Holder to stop enforcing U.S. code governing veterans benefits in a way that discriminates against same-sex couples. According to the organization, a little more than 1,000 people had signed the petition as of Wednesday.

Ian Thompson, legislative representative for the American Civil Liberties Union, expressed confidence the administration would be able to come to a conclusion on these issues as it has done with other benefits in the aftermath of the DOMA ruling.

“Federal agencies have moved with commendable speed to extend recognition to married same-sex couples, and to do so in a way that recognizes that these marriages don’t dissolve when a couple crosses state lines,” Thompson said. “While more work remains, including with SSA and the VA, we are confident that these issues can be properly addressed.”

The Justice Department didn’t respond to the Blade’s request for comment on the pace with which these benefits are being rolled out or when these outstanding issues will be resolved.

Shin Inouye, a White House spokesperson, touted the administration’s work so far in implementing benefits as he acknowledged “some work remains.”

“Following the Supreme Court’s ruling in Windsor, the president directed the attorney general to work with the Cabinet to review federal law to ensure the decision and its implications for federal benefits and obligations are implemented swiftly and smoothly,” Inouye said. “That process is ongoing, and while some work remains, the administration has worked to affirm the principle that all couples who are legally married receive full and equal recognition, to the greatest extent possible under the law.”

Should the administration determine it must continue enforcing these laws, a legislative fix from Congress would be necessary to ensure these benefits can flow to gay couples. For the Social Security benefits, that would mean passage of the Social Security Equality Act, sponsored by Rep. Linda Sanchez in the House. For the veterans benefits, that would mean passage of the Charlie Morgan Act, sponsored by Sen. Jeanne Shaheen (D-N.H.) in the Senate.

The federal benefits of marriage across the board would be assured for married gay couples regardless of where they live after passage of the Respect for Marriage Act, which is sponsored by Rep. Jerrold Nadler (D-N.Y.) in the House and Sen. Dianne Feinstein (D-Calif.) in the Senate.

A Senate Judiciary Committee aide told the Blade last year that a Senate hearing was in the works for fall 2013 on the legislation. Although the hearing never took place, a Senate aide told the Blade plans are still underway for a hearing.

“Chairman Leahy continues to push for timely and comprehensive implementation of the Windsor decision, including last week’s landmark announcement that the Justice Department will treat all lawfully married couples equally in federal legal matters,” the Leahy aide said. “Chairman Leahy is committed to taking discrimination out of our laws, and he is working to schedule a hearing and build support for the Respect for Marriage Act.”

Not all the outstanding issues in the aftermath of the DOMA ruling are related to law. Benefits are blocked from flowing to married same-sex couples in non-marriage equality states under the Family & Medical Leave Act not because of statute, but by regulation, which the administration could change at any time without action from Congress.

And that change is already taking place. Last last year, the Department of Labor announced it was changing the regulations for the Family & Medical Leave Act — along with regulations for a slew of other laws — to ensure those benefits flow to married same-sex couples living in non-marriage equality states. According to Thompson’s HR Compliance Expert, the change will be implemented in March.

Laura Fortman, principal deputy administrator of the Labor Department’s Wage & Hour Division, wrote about the proposed change in a little-noticed blog post at the time.

“No one should have to choose between succeeding at work and being a loving family caregiver,” Fortman said. “The FMLA’s protections help ensure that people have the opportunity to be both and our proposed rulemaking is an important step in ensuring the law keeps up with the needs of all families in this country.”

Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization looks forward to the day when the DOMA decision is “fully implemented” by the federal government.

“Steady progress is being made and more is to come,” Carey said. “For example, we are working with the Department of Health and Human Services to ensure that health insurance plans offer coverage for same-sex spouses regardless of where they live. Big picture, we fully expect this landmark decision to continue to positively impact the lives of LGBT people and their families for years to come and in ways that we haven’t even imagined.”

19
Feb
2014

Cartoon: now hiring

Hobby Lobby, gay news, Washington Blade

(Washington Blade cartoon by Ranslem)

01
Jul
2014

2013: The year in quotes

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Edith Windsor (Washington Blade photo by Michael Key)

“The gay community is my ‘person of the year’ and I look forward to continuing to fight for equal rights and educate the public about our lives alongside my gay brothers and sisters and our allies … Thea would be thrilled, proud and so happy to see what we have all accomplished together.” Edith Windsor, the plaintiff in the Supreme Court case that overturned the Defense of Marriage Act, reacting to be named one of the Top 3 individuals for “Person of the Year.” (Joe.My.God, Dec. 11)

 

“There is no way I could ever stand here without acknowledging one of the deepest loves of my life, my heroic co-parent, my ex-partner in love but righteous soul sister in life. My confessor, ski buddy, consigliere, most-beloved BFF of 20 years, Cydney Bernard. “

Jodie Foster during her Jan. 13 acceptance speech for the Cecil B. Demille Award during the 70th annual Golden Globe Awards (ABC News, Jan. 14)

 

Cory Booker, United States Senate, New Jersey, Democratic Party, gay news, Washington Blade

Sen. Cory Booker (D-N.J.) (Washington Blade photo by Michael Key)

“Well, it didn’t take me long to realize that the root of my hatred did not lie with gays but with myself. It was my problem. A problem I dealt with by ceasing to tolerate gays and instead seeking to embrace them.”

Newark, N.J., Mayor Corey Booker in a 1992 op-ed where he wrote about coming to terms with his negative feelings toward homosexuals. (Stanford Daily, Jan. 9)

 

“Just letting you know… that using ‘your gay’ as a way to put someone down ain’t ok! #notcool delete that out ur vocab”

NBA star Kobe Bryant of the Los Angeles Lakers, responding via Twitter to someone using “you’re gay” as an insult. In 2011, Bryant was fined $100,000 for calling an NBA official a fag. (CBS Sports, Feb. 11)

 

“I don’t think it’s very controversial to suggest that a candidate who favors gay marriage and free contraception might have more appeal to a younger demographic. Does anyone want to argue … that there are more gay rights organizations on college campuses than in VFW halls?

— Stuart Stevens, Mitt Romney’s lead presidential campaign strategist, in an op-ed about what caused Romney to lose to President Obama. (Washington Post, Feb. 24)

 

President Bill Clinton (Washington Blade photo by Michael Key)

President Bill Clinton (Washington Blade photo by Michael Key)

“As the president who signed the act into law, I have come to believe that DOMA is … incompatible with our Constitution.”

Former President Bill Clinton, in a column against the Defense of Marriage Act, which he signed in 1996. The law, which the Supreme Court will take up on March 27, denies federal recognition to same-sex marriages and allows states to ignore same-sex marriages from other states. (Washington Post, March 7)

 

“Bob is 15 years old, and the only openly gay Scout in a Boy Scout troop. Is it acceptable or unacceptable for the troop leader to allow Bob to tent with a heterosexual boy on an overnight camping trip?”

One of several scenarios included in a Boy Scouts of America survey sent to members and their parents as the BSA considers whether to relax its ban on gay Scouts, volunteers and leaders. The BSA board may consider the policy in May. (Dallas Voice, March 11)

 

“If you feel, respectfully, that you can get a higher return than the 38 percent you got last year, it’s a free country. You can sell your shares of Starbucks and buy shares in another company. Thank you very much.”

Starbucks CEO Howard Schultz, responding at the company’s annual shareholder meeting to a stock owner who questioned whether the coffee chain was being hurt by its support for same-sex marriage. (NPR.org, March 20)

 

“Life is life and love is love, and I’m just trying to be a better me, you know what I’m saying?”

Rapper Snoop Lion, asked by paparazzi his stand on gay marriage. “I don’t have a problem with gay people. I got some gay homies,” he also said. (TMZ.com, April 7)

 

“I think this is going to be good for a lot of black young people who want to come out. E.J. is going to be that symbol — a symbol of hope that they can now come and tell their parents, tell their friends.”

Basketball legend Magic Johnson, who came out as HIV-positive in 1992, on his support for his son, Ervin “E.J.” Johnson III, coming out as gay after being photographed by TMZ holding hands with his boyfriend. (Denver Post, April 7)

 

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Jason Collins (Image courtesy of Sports Illustrated)

“I’m a 34-year-old NBA center. I’m black. And I’m gay. … If I had my way, someone else would have already done this. Nobody has, which is why I’m raising my hand.”

NBA veteran Jason Collins of the Washington Wizards, coming out in the May 6 issue of Sports Illustrated. Collins becomes the first gay athlete in major U.S. men’s professional sports to come out during his career. (Sports Illustrated, released online April 29)

 

“In making the film, the socio-political aspect of it was not really in my mind but I was focused on … trying to make this relationship as believable and realistic as we could. When this issue comes up, of equal rights for gays, I am hoping 50 years from now we will look back on this and wonder why this was even a debate and why it took so long.”

Director Steven Soderbergh discussing his latest film, Liberace biopic “Behind the Candlebra,” which made its Cannes debut May 21 (Reuters, May 21)

 

Robbie Rogers, soccer, sports, gay news, Washington Blade

Robbie Rogers (Photo by Noah Salzman via Wikimedia Commons)

“I’ve been on this huge journey to figure out my life, and now I am back here I think where I am supposed to be.”

Professional soccer player Robbie Rogers in a May 26 post-game press conference after his debut with the LA Galaxy made him the first openly gay athlete to compete in U.S. men’s professional team sports. Rogers, a former national team player, came out in April and announced his retirement. (YouTube, May 27)

 

“Our community has been targets of bigotry, bias, profiling and violence. We have experienced the heart-breaking despair of young people targeted for who they are, who they are presumed to be, or who they love … Every person, regardless of race, religion, sexual orientation or gender identity, must be able to walk the streets without fear for their safety.”

Open letter from national LGBT organizations supporting a federal investigation into Trayvon Martin’s death after his accused killer was found not guilty. (Press release, July 15)

 

“We welcome all individuals regardless of sexual orientation into our ballparks, along with those of different races, religions, genders and national origins. Both on the field and away from it, Major League Baseball has a zero-tolerance policy for harassment and discrimination based on sexual orientation.”

MLB Commissioner Bud Selig, announcing new code of conduct that will be distributed individually to professional baseball players at every level of the game. (New York Attorney General’s Office press release, July 16)

 

“If someone is gay and he searches for the Lord and has good will, who am I to judge?”

Pope Francis, head of the Roman Catholic Church, telling reporters that he would not judge priests for their sexual orientation. The former pope, Benedict XVI, had said gay men should not be priests. (New York Times, July 29)

 

“If you take men and lock them in a house for five years and tell them to come up with two children and they fail to do that, then we will chop off their heads.”

Zimbabwe President Robert Mugabe, stating at a rally that homosexuality “seeks to destroy our lineage” and Zimbabwe will not “accept the homosexuality practice” even if it costs the country U.S. aid. (News Day, July 25)

 

“As an openly gay African American, Mr. Rustin stood at the intersection of several of the fights for equal rights.”

White House press release announcing that Bayard Rustin, who helped organize the 1963 March on Washington, will be posthumously awarded the Presidential Medal of Freedom. Sally Ride, the first female American astronaut in space, will also receive the Medal of Freedom; she became known publicly as gay when her obituary listed her longtime partner. (Aug. 8)

 

“I was excited to hear today that more states legalized gay marriage. I, however, am not currently getting married, but it is great to know I can now, should I wish to.”

Actress Raven-Symone, who gained fame as a child on “The Cosby Show,” coming out in a statement after tweeting, “I can finally get married! Yay government! So proud of you.” (Washington Times, Aug. 4)

 

“Dude, lesbians love me. I’m tall, I have a deep voice, I’m like, ‘Hello, catnip!’ Now that this show’s out I’m curious what happens from here because whenever I go out lesbians try to, y’know, turn me.”

Actress Laura Prepon, discussing playing lesbian drug dealer Alex Vaus on “Orange is the New Black.” (Canada.com, Aug. 1)

Vladimir Putin, Russia, gay news, Washington Blade

Russian President Vladimir Putin (Photo public domain)

“Putin, end your war on Russian gays!” a shout by an unidentified man at the Metropolitan Opera’s opening night of Tchaikovsky’s “Eugene Onegin.” Gay activists protested the opera to bring awareness to Russia’s law banning “propaganda on nontraditional sexual relationships” that President Vladimir Putin signed into law in June. (Sept. 23, The New York Times)

 

“I am usually a very strong and confident person, but I have my moments too. Although there was positive feedback, there was a lot of negative too, and the negative affected me more than it ever has before. I recorded this because I didn’t know how else to vent, I didn’t want to talk to anybody.” – Cassidy Lynn Campbell, a transgender teen who was named Huntington Beach high school homecoming queen, in a YouTube post where she was visibly upset by negative reactions. (Sept. 23, Los Angeles Times)

 

“Liz — this isn’t just an issue on which we disagree you’re just wrong — and on the wrong side of history.” Mary Cheney responding on Facebook on Nov. 17 to her sister’s response on “Fox New Sunday” saying she opposed same-sex marriage and that was an area where she and her sister disagreed. Liz Cheney is running for U.S. Senate in Wyoming.

Compiled by Georgia Voice

 

01
Jan
2014

Supreme Court won’t hear anti-gay photographer case

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court won’t hear the case of New Mexico photographer who refused to shoot a same-sex wedding ceremony (Washington Blade file photo by Michael Key).

The U.S. Supreme Court announced on Monday it won’t take up a case in which a New Mexico photography business alleges its rights were violated when it landed in hot water for refusing to shoot a same-sex wedding ceremony.

In orders published Monday morning, the court listed the case, Elane Photography v. Willock, without comment as among the cases it won’t consider.

The case was brought to the Supreme Court by Elane Photography, which was found to have violated New Mexico’s anti-discrimination law for refusing to take a photo for the same-sex wedding ceremony for Vanessa Willock and Misti Collinsworth in 2006. (The wedding was only ceremonial because the incident took place before the state legalized same-sex marriage.)

Elane Photography filed lawsuit in state court, alleging that its refusal to photograph a same-sex wedding is protected on religious grounds. However, the New Mexico Supreme Court ruled against the claims, saying the businesses service can be regulated because it’s a public accommodation. Following that decision, Elane Photography asked the U.S. Supreme Court to consider the lawsuit based on First Amendment protections under the U.S. Constitution.

The court was scheduled to consider whether to take up the case during its March 21 and March 28 conference. To grant a writ certiorari, or a take up a case, at least four of the nine justices on the court must agree to consider lawsuit. It’s unknown what the vote was on denying certiorari in this case.

Had the court taken up the case, justices could have found a constitutional right across the country for individuals to discriminate against LGBT people or refuse services for same-sex weddings ceremonies on the basis of religion.

Anti-gay groups had pointed to the incident as a reason to enact laws in various states to allow individuals and business to refuse services to gay people without fear of reprisal, such as the controversial “turn away the gay” bill recently vetoed by Arizona Gov. Jan Brewer and signed into law by Mississippi Gov. Phil Bryant. Other bills along those lines are pending in numerous states — Kansas, Mississippi and Georgia — but have seen resistance going forward.

07
Apr
2014

Supreme Court rejects ‘conversion therapy’ case

Yvette Alexander, gay news, Washington Blade, conversion therapy

D.C. Council member Yvette Alexander said a measure to ban ‘ex-gay’ therapy is expected to pass before the end of the year. (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday declined to consider a case challenging a California law that bans licensed mental health practitioners from performing so-called conversion therapy to change the sexual orientation of minors from gay to straight.

The court’s refusal to take the case effectively upholds a federal appeals court ruling last August that the law approved by the California Legislature banning the controversial form of therapy did not violate free-speech rights of therapists or people under the age of 18 who may wish to obtain the treatment.

The law has been placed on hold by the courts since Gov. Jerry Brown signed it in September 2012 after the Liberty Counsel, a conservative Christian litigation group, first filed a legal challenge to the law. The Ninth Circuit U.S. Court of Appeals, whose decision upholding the law was left in place by the Supreme Court on Monday, was expected to lift a stay it placed on the law pending action by the Supreme Court in the next few days.

“This life-saving law has cleared the final hurdle and will now protect California youth from harmful practices that have been rejected by all leading medical and mental health organizations,” said Shannon Minter, legal director of the National Center for Lesbian Rights. “This important legislation will permanently improve the health and well-being of California’s most vulnerable LGBT young people,” Minter said.

Matt Staver, founder and chair of the Liberty Counsel, said the upholding of the law by the courts would have a harmful impact on young people who seek out the discredited treatment for unwanted same-sex attractions.

“I am deeply saddened for the families we represent and for the thousands of children that our professional clients counsel, many of whom developed these unwanted attractions because of abuse of a pedophile,” he said in a statement released on Monday.

Staver said he was hopeful that a separate court case in which his group is challenging a nearly identical law banning conversion therapy approved by the New Jersey Legislature will come before the Supreme Court with a different outcome.

California and New Jersey are the only two states that have approved such laws. Similar laws have been introduced in the legislatures of at least seven other states, including Maryland and Virginia.

The measure introduced in Virginia died in the General Assembly this year, but supporters say they will seek to bring it up against next year. In Maryland, the sponsor of a similar bill withdrew it earlier this year after Maryland Attorney General Douglas Gansler issued an opinion saying the state has administrative authority to put in place a ban on conversion therapy for minors without legislation.

The Supreme Court’s action on Monday came three days after opponents and supporters of conversation therapy testified before a D.C. City Council hearing on a proposed law that, similar to the California and New Jersey laws, would ban conversion therapy in the District for people under the age of 18.

Council member Yvette Alexander (D-Ward 7), who chairs the committee with jurisdiction over the proposed legislation, said the measure enjoys strong support from nearly the entire 13-member Council and is expected to pass before the end of the year.

01
Jul
2014

2013 in photography

2013 was a banner year for the LGBT community. Here are the top Washington Blade photos of the year. (Washington Blade photos by Blake Bergen, Tyler Grigsby, Michael Key, Kevin Majoros, Damien Salas, Lee Whitman and Jon Wooten) buyphoto 

03
Jan
2014

La. sodomy law repeal bill fails

Louisiana House of Representatives, sodomy law, gay news, Washington Blade

Louisiana House of Representatives (Photo by Jeffrey Schwartz; courtesy Wikimedia Commons)

BATON ROUGE, La.–The Louisiana House of Representatives on April 15 killed a bill that would have repealed the state’s anti-sodomy law.

Lawmakers by a 66-27 vote margin rejected House Bill 12 that state Rep. Patricia Smith (D-Baton Rouge) introduced after reports emerged the East Baton Rouge Parish Sheriff’s Office arrested at least a dozen men under the statute over the last two years.

The U.S. Supreme Court in 2003 found Texas’ sodomy law unconstitutional in its landmark Lawrence v. Texas decision.

The Associated Press reported that state Rep. Valarie Hodges (R-Denham Springs) defended Louisiana’s sodomy law during the debate on HB 12.

“We’re not here to rubber-stamp the Supreme Court,” she said.

16
Apr
2014

Holder: DOJ will file brief in marriage case before Supreme Court

Eric Holder, United States Justice Department, Barack Obama Administration, Lincoln Memorial, the 50th Anniversary of the March on Washington, civil rights, gay news, Washington Blade

U.S. Attorney General Eric Holder said the Obama administration would file a brief in support of marriage equality (Washington Blade file photo by Michael Key).

U.S. Attorney General Eric Holder said the Obama administration would file a brief in support of litigation seeking marriage rights for gay couples when it returns to the Supreme Court.

During a TV interview with ABC News’ Pierre Thomas that aired Sunday, Holder said filing a brief urging the court to rule in favor of marriage equality would be consistent with the administration’s action on the Defense of Marriage Act.

“We are proud of what we have done,” Holder said. “If the case comes before the Supreme Court, we will file something consistent with what we have done that would be in support of same-sex marriage.”

In response to a follow-up question, Holder affirmed he believes discrimination against gay people in terms of marriage is unconstitutional.

“I think that’s why we decided not to support the Defense of Marriage Act,” Holder said. “When you have differentiations that are made on the basis of sexual orientation, they should be subject to heightened scrutiny. That being the case, I think a lot of these measures that ultimately will come before the Court will not survive a heightened scrutiny examination.”

As marriage equality lawsuits continue to make their way through the judicial system, observers expect the Supreme Court will return to the issue as soon as next year. Justices delivered rulings on DOMA and California’s Proposition 8 in 2013.

Following the U.S. Tenth Circuit Court of Appeals ruling affirming that Utah’s ban on same-sex marriage is unconstitutional, Utah Attorney General Sean Reyes has already vowed to take up the matter with the Supreme Court.

Advocates have already welcomed the idea of the Obama administration participating in the marriage equality lawsuits. It wouldn’t be the first time the Obama administration has weighed in. The Justice Department submitted a friend-of-the-court brief in favor of overturning Prop 8 when the issue was before the Supreme Court.

It remains to be seen whether the brief that the Justice Department will submit next to the court will call for a nationwide ruling on marriage equality. The brief submitted in the Prop 8 case endorsed the idea known as the time as the “eight-state solution” in which states with domestic partnerships or civil unions would be required to extend full marriage rights to same-sex couples.

Evan Wolfson, president of Freedom to Marry, said he welcomes news the Obama administration would participate in marriage equality lawsuits before the court and the action is consistent with Holder’s record in favor of LGBT rights.

“The attorney general has consistently been a strong champion, faithfully upholding the Constitution’s command and putting the federal government on the side of families and freedom,” Wolfson said. “Of course, the Justice Department will find itself in good company, given the more than 20 federal and state rulings that have upheld the freedom to marry as we make our way to the Supreme Court.”

13
Jul
2014

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.”

06
Jan
2014

Jo Becker’s revisionist history on marriage

Proposition 8, Supreme Court, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade, Becker

(Washington Blade file photo by Michael Key)

Jo Becker’s book “Forcing the Spring,” which lauds the work of the American Foundation for Equal Rights has generated much debate in the LGBT community. Andrew Sullivan trashed the book and its author and claimed some major credit for himself in the fight for marriage equality.

Elizabeth Birch, former president of the Human Rights Campaign trashed Sullivan in her Huffington Post column. But they apparently agree on one thing: The book by Becker is far from an accurate history of the fight for marriage equality.

Reading the excerpt published in the New York Times, it was easy to accept both Sullivan and Birch were right even if their language was harsh. Michael Calderone in his Huffington Post piece quotes Sullivan’s comments on Becker’s book in which he said it is “truly toxic and morally repellent,” and that it includes instances of “jaw-dropping distortion” and statements “so wrong, so myopic and so ignorant it beggars belief that a respectable journalist could actually put it in print.” I guess Sullivan and Becker won’t be going for brunch anytime soon.

Birch calls Sullivan “insufferable,” and notes, “While it is true that the struggle for marriage equality predates the Proposition 8 case and its aftermath, it also predates Andrew Sullivan. (Did anyone else notice no less than four of Sullivan’s books are pushed in the opening paragraphs of his diatribe against the Prop 8 team? So much for collective credit).”

But why is anyone surprised that Sullivan thinks the world revolves around him? I remember his New York Times magazine cover story on the AIDS epidemic, “When Plagues End,” in 1996 when he declared the AIDS epidemic over because the new medications worked for him. The millions who have died and been infected since may not see themselves in the same light.

Both Sullivan and Birch offered strong statements about what was left out of Becker’s book and after reading the excerpt, I was left wondering how much money AFER paid her to write it. It clearly is not a history of the fight for gay marriage but rather a book trying to create heroes of a select few. This is not to denigrate the work of Chad Griffin or the actual work of attorneys who fought the Prop 8 fight or the real heroes of that fight, the couples who brought suit.

But in the excerpt (I haven’t read the full book) she portrays Ken Mehlman as a hero, glancing over his personal responsibility for the anti-gay rhetoric and devastating policies of the Bush administration. She never mentions that while Olsen was one of the lawyers for these couples he was at the same time supporting the Romney/Ryan ticket that was promising to repeal all gay rights advances and to appoint justices to the Supreme Court who would be guaranteed to rule against this case.

There are so many people and organizations deeply involved in the struggle for marriage equality. The fact is, the case brought by AFER to the Supreme Court was a partial victory instead of a possible total loss because Walter Dellinger, former acting solicitor general in the Clinton administration, submitted a brief offering the court what some called an “off-ramp.” It was his brief quoted in Chief Justice Roberts’ opinion that allowed the court to reject the case and return it to the Appellate Court in California where the ruling would only impact that state.

The Becker book apparently leaves out nearly all the activists who have spent a good part of their lives fighting for full human and civil rights for the LGBT community. Many have spent the years working for marriage equality that Mehlman and Olsen spent developing and supporting policies to prevent it.

From Hawaii, where the Supreme Court first ruled in 1993 that marriage equality was constitutional beginning the long fight there, to Massachusetts, which became the first state to legalize marriage equality in 2004; to Iowa that legalized it in 2009 to D.C., the fight for marriage was an effort by thousands. D.C. advocates spent 20 years preparing the stage and working to elect a City Council that would vote yes when the right time came. The question Becker says Griffin put to Obama about when he would “evolve” was asked by many others at those small $37,500 a couple fundraisers. I myself put him on the spot with the same question, and got the same answer, at one of those events on Sept. 30, 2011.

I hope that when marriage equality becomes a reality across the entire nation that someone will write the real history of the fight that won it. That book will be beneficial to future generations in a way that the Becker book will never be.

24
Apr
2014