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Two new lawsuits target DOMA

GLAD, ACLU argue no ‘legitimate reason’ for statute

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LGBT rights groups are continuing efforts to strike down the Defense of Marriage Act with two new federal lawsuits challenging the constitutionality of the statute.

On Tuesday, Gay & Lesbian Advocates & Defenders and the American Civil Liberties Union filed two separate lawsuits against Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriage.

Mary Bonauto, GLAD’s civil rights project director, said Tuesday in a conference call with reporters that the federal government has no valid reason to engage in the regulation of marriage.

“We think there’s no legitimate reason whatsoever for the federal government to take one group of people who are already married and treat them differently from every other married couple,” she said.

Bonauto added that the authority to determine who can marry in the United States has traditionally been left to the states and said DOMA is the only federal law in U.S. history “that puts the federal government in the marriage business.”

The cases contend that DOMA violates the equal protection rights of same-sex couples under the U.S. Constitution.

James Esseks, director of the ACLU’s lesbian, gay, bisexual transgender and AIDS project, said DOMA is unconstitutional because the U.S. government “defers to state’s determination of whether a couple is married in every single context except when the couple is a same-sex married couple.”

“In that case, the federal government pretends that the couple isn’t married, but instead are strangers one to the other,” Esseks said. “That’s discrimination, and it violates the Constitution’s equal protection guarantee.”

The GLAD lawsuit, known as Pedersen v. Office of Personnel Management, is pending before the U.S. District Court of Connecticut and was filed on behalf of five married same-sex couples and a widower who reside in Connecticut, Vermont and New Hampshire.

Each of the plaintiffs was denied the federal benefits of marriage in one respect or another, such as Social Security or the right to care for a spouse under the Family Medical Leave Act.

Joanne Pedersen, 57 and a Waterford, Conn., resident, said she’s participating in the lawsuit because although she’s a retiree of the Department of Naval Intelligence, DOMA prohibits her from insuring her spouse and partner of 12 years, who has a chronic lung condition.

“The naval community treated Ann just like other spouses, except when it came to sharing my benefits,” Pedersen said. “We both have some serious health challenges, and Ann has chronic health issues that make working stressful and draining for her. But Ann can’t hope to retire because DOMA prevents us from sharing health benefits.”

The ACLU lawsuit, known as Windsor v. United States, is pending before the U.S. District Court of Southern District of New York and was filed on behalf of a New York resident who had to pay $350,000 in federal estate taxes to receive her spouse’s inheritance.

Edith Windsor was partnered with Thea Spyer for 44 years before Spyer died last year after a battle with multiple sclerosis. The two married in Canada in 2007 and their marriage was recognized by the state of New York.

“After Thea died, the fact that the federal government refused to recognize our marriage was devastating,” Windsor said in a statement. “In the midst of my grief at the loss of the love of my life, I had to deal with my own government saying that we weren’t a family.”

Now that the organizations have filed the suits, the U.S. government has 60 days to respond. The Justice Department didn’t immediately respond to the Blade’s request for comment, but has previously defended DOMA against other lawsuits.

Esseks noted the Justice Department has a few months to answer. With regard to the ACLU lawsuit, he said “it’s too early to talk in any meaningful way” about the timeline for the case.

For the GLAD lawsuit, Bonauto said she hopes the case would be resolved at the district court level within 12 to 15 months. She said she doesn’t think the litigation would go to the U.S. Supreme Court before 2013.

The two new lawsuits come on the heels of other rulings by the U.S. District Court of Massachusetts in July determining that Section 3 of DOMA is unconstitutional.

U.S. District Court Judge Joseph Tauro made the decisions in case of Gill v. Office of Personnel Management, which was also filed by GLAD, and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.

Following the district court’s decision to rule that part of DOMA is unconstitutional, the U.S. government appealed the cases to the U.S. First Circuit Court of Appeals, where the litigation is pending.

Bonauto said the additional GLAD lawsuit is necessary to continue to educate people about the “harms imposed by DOMA.” Additionally, she noted many of the plaintiffs in the Pedersen live in Vermont and Connecticut, which is in the Second Circuit, and wouldn’t be affected by a ruling in the First Circuit as a result of the Gill case.

“We are in a different federal judicial circuit here, so we have a chance to press once again the basic claim that DOMA is legally unconstitutional in terms of having a double-standard imposed only on gay and lesbian married couples,” Bonauto said.

If both the Gill and the Commonwealth cases reach the Supreme Court at the same time as justices take up the Pedersen case, Bonauto said she thinks the newer lawsuits could be combined with the older ones.

The filing of the lawsuits has inspired different reactions among advocacy groups that work on marriage. In a statement to the Blade, Maggie Gallagher, chair of the National Organization for Marriage, chided LGBT groups for continuing to challenge DOMA in the wake of Election Day results.

“After Tuesday’s election, in which gay marriage lost big, it’s pretty clear gay marriage advocates have failed to win the majority of Americans and so are turning once again to courts to impose views and values they’ve failed to persuade their friends, neighbors and fellow citizens to support,” she said.

But Joe Solmonese, president of the Human Rights Campaign, said in a statement that the litigation provides further evidence that DOMA is “not simply an abstract insult to the dignity of same-sex couples and their families — although it is indeed a deeply offensive law.”

“DOMA causes real harm to people like Joanne Pedersen, Ann Meitzen and Edie Windsor, denying them economic security, health coverage and other critical federal rights and benefits that other married couples take for granted,” Solmonese said.

One legal expert praised the GLAD and ACLU lawsuits for their potential in striking down DOMA. Nan Hunter, a lesbian and law professor at Georgetown University, said forecasting the outcome of any particular lawsuit is difficult, but said the way DOMA is challenged in these cases is “quite promising.”

“It allows the courts to rule on a law that changed the status quo by singling out only gays and reversing — only for that one group — the federal government position of recognizing all marriages that were valid under state law,” she said.

Hunter said the litigation strategy is similar to what was presented in Romer v. Evans, a 1996 case before the U.S. Supreme Court that overturned a Colorado ban on making gays a protected class in the state. Hunter recalled that in the Romer case, the high court “invalidated a state provision that singled out gays for having to meet a higher barrier in order to enact a civil rights law.”

CORRECTION: An earlier version of this article misspelled the name of the name of James Esseks. The Blade regrets the error.

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National

Results from key Tuesday primary races

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Democratic State Sen. Scott Wiener (Photo courtesy of Scott Wiener)

State officials in California had not called the governor’s race as of Wednesday morning but Republican Steve Hilton and Democrat Xavier Becerra appear likely to advance to the general election. 

The race for governor has been scrambled several times after Kamala Harris opted not to run, Rep. Eric Swalwell dropped out after sexual misconduct allegations surfaced, and Rep. Katie Porter’s campaign fizzled. Becerra would be the state’s first Latino governor since 1875 if elected. Hilton was endorsed by President Trump. 

In the Los Angeles mayor’s race, the AP declared that incumbent Mayor Karen Bass will advance to the Nov. 3 runoff while former reality TV star Spencer Pratt and LA Council member Nithya Raman were competing for second place. California is notoriously slow in counting ballots and only about half of the results were available by Wednesday morning.

In San Francisco, Democratic State Sen. Scott Wiener advanced to the general election in November, besting Supervisor Connie Chan, who was endorsed by House Speaker Emerita Nancy Pelosi. Pelosi is retiring from Congress after nearly 40 years in the House.

In Iowa, Democratic state Rep. Josh Turek won the primary for an open U.S. Senate seat, defeating state Sen. Zach Wahls. Turek will face Rep. Ashley Hinson, who won the GOP primary with President Donald Trump’s endorsement, in the general election.  

The Iowa seat is open because Sen. Joni Ernst (R) decided not to seek re-election. The primary was closely watched by LGBTQ advocates because Wahls rose to national prominence after a speech he made defending marriage equality went viral in 2011. Wahls was raised by a lesbian couple. 

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National

White House Correspondents’ Dinner rescheduled after shooting

‘We will not allow an act of violence to have the last word’

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The scene inside April’s White House Correspondents’ Dinner after shots rang out. (Washington Blade photo by Joe Reberkenny)

The White House Correspondents’ Association announced on Tuesday that it has rescheduled its annual dinner for July 24 after the April event was halted when gunshots rang out at the Washington Hilton.

Cole Allen, 31, is charged with the attempted assassination of President Trump, who was in the ballroom at the time of the incident. One Secret Service officer was wounded in the attack. Officers stopped Allen before he could enter the ballroom where 2,500 journalists and politicos were having dinner and waiting for Trump to speak. It was Trump’s first time attending as president.

“We will not allow an act of violence to have the last word, especially during a year when we are reflecting on the 250th anniversary of America and everything we stand for,” said WHCA President Weijia Jiang in a statement to members. 

She did not announce further details, including venue and ticketing. 

Washington Blade White House reporter Joe Reberkenny was in the audience when shots were fired and reported live on social media from the scene.  

This post will be updated as more details are announced.

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Federal Government

Advocates push back on proposed FCC warning labels

New rating system public notice seeking comments issued on April 22

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(Photo by REDPIXEL.PL/Bigstock)

The Federal Communications Commission is considering a new rating system that would require a warning label to appear before any television content that includes LGBTQ characters.

On April 22, the FCC issued a public notice asking Americans to submit comments on whether the TV Oversight Management Board should create new TV ratings to alert viewers to “transgender and gender nonbinary programming” and “the discussion or promotion of gender identity themes.”

This proposed warning would appear before content, similar to warnings that explain a program contains sexual content, drug use, or violence — categories that Congress explicitly included in the Telecommunications Act of 1996 on the grounds of obscenity and violence that some parents “believe is harmful to their children.”

The public notice says that “recently, parents have raised concerns that controversial gender identity issues are being included or promoted in children’s programs without providing any disclosure or transparency to parents.”

It goes on to say that not having a warning for trans and nonbinary people is “undermining the ability of parents to make informed choices for their families.”

LGBT Tech is an organization that works to provide LGBTQ representation in mainstream media or entertainment. The group notes 81 percent of trans respondents it surveyed said these representations had a positive impact on them discovering or learning about their identity.

“These numbers reflect a basic truth: for many people, and especially young people, seeing LGBTQ+ lives represented in ordinary media is not harmful. It is formative, affirming, and often lifesaving.”

Since the public notice’s publication, more than 40 organizations have come out against the proposed alert.

GLAAD President Sarah Kate Ellis issued a statement in May on the proposal, highlighting what she described as a concerted effort by the Trump-Vance administration to other trans and nonbinary people.

“The FCC does not set TV ratings, but under this administration the FCC has repeatedly tried to control what Americans can see on their own televisions. This government overreach is dangerous and a threat to our community and our democracy,” Ellis said.

“LGBTQ+ people and their families deserve to see their lives represented in the media they watch. And media companies must have the freedom to create programming that appeals to their viewers and subscribers without interference from a government pursuing its own anti-LGBTQ+ political agenda.”

Human Rights Campaign President Kelley Robinson pointed out that this is an act of politically motivated policy, not one based on any rhyme or reason.

“LGBTQ+ stories matter and deserve to be told, seen, and heard,” Robinson said. “The Trump administration does not get to use the FCC to try and erase us simply because they want to pretend to live in a world where we don’t exist. This is a brazen form of political interference that will hurt the ability of all people to appreciate, understand, and learn about the world and people around them.”

Brian Dittmeier, director of LGBTQI+ equality at the National Women’s Law Center Action Fund, echoed Robinson’s concerns that this is attempted censorship for the sake of political gain.

“The FCC is cloaking itself in purported concern for parents in an attempt to censor content, intimidate industry, and silence depictions of our trans siblings and neighbors,” Dittmeier wrote. “The FCC is overstepping its authority to undermine the existing ratings system, which is well understood by parents and enjoys broad public support. The FCC’s presumption that it knows better does not reflect parents’ priorities and reeks of government overreach.”

PFLAG National Vice President of Policy and Government Affairs Diego Sanchez said this is federal government overreach into censorship — something the First Amendment protects against.

“The FCC has given us yet another example of what ‘small government’ means: small enough to fit in your living room; to interrupt family movie night; small enough to make home feel unsafe,” Sanchez said. “Parents and families with transgender loved ones in particular know too well how big government actions impact their families directly, because they feel those impacts before everyone else.”

This proposed warning follows a slew of other federal actions targeting trans people in America, including Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which mandated that only sex assigned at birth be used on federal government documents regardless of gender identity, as well as broad-based restrictions on gender-affirming care, particularly for trans minors.

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