National
Prop 8 opponents: Calif. civilians can’t defend case against state
Supporters of anti-gay law attempting to jump in to defend it after the state chose to stay out
Today the California Supreme Court heard oral arguments over whether or not under state law civilian supporters can take the place of the state, specifically in the Federal case challenging anti-marriage equality Proposition 8.
The hour long hearing was followed by press conferences in which both sides expressed pleasure in the outcome. The court, however, still has 90 days to come to a decision, and both opponents and supporters of Proposition 8 will be watching closely for any indication that that decision is ready.
In August of last year, Federal Court Judge Vaughn Walker found unconstitutional Proposition 8, the law barring marriage between two adults of the same sex created after a November 2008 ballot measure, ruling in favor of plaintiffs represented by the organization American Foundation for Equal Rights. The attorneys leading the charge against the law are former President Bush solicitor general Ted Olson, and former Al Gore lawyer David Boies who in 2000 faced off in Bush v. Gore. While plaintiffs are seeking to restore marriage equality to California, proponents of the measure are attempting to appeal Judge Walker’s ruling.
The 9th Circuit Federal Court of Appeals put the case, Perry v. Brown (formerly Perry v. Schwarzenegger) on hold in January after both Governor Jerry Brown and Attorney General Kamala Harris refused to defend the law in court citing their own constitutional objections. When concerned citizen groups hoping to keep the law on the books attempted to fill in for the state to defend the law, the 9th Circuit asked the California Supreme Court to rule on whether or not the concerned groups can in fact defend the law in place of the state. The legal principle at question is “standing,” which Law.com defines as “the right to file a lawsuit or file a petition under the circumstances.”
Though the 9th Circuit will make the ultimate decision, the appeals certified a question to the State Supreme Court of California on whether state law allows proponents of the ballot initiative to have the right to represent the state in the appeal in place of the state officials themselves. In February the California Supreme Court agreed to address the 9th Circuit’s question which led to today’s hearing.
If the State Supreme Court decides that the interest groups — which include a well-funded conservative website called ProtectMarriage.com — can indeed take the place of the state in defending the law, the 9th Circuit is expected to follow the guidance, allowing the case to proceed through the 9th Circuit despite the non-involvement of any agents of the state. Likewise, if the California Supreme Court decides against the proponents of Proposition 8, the 9th Circuit is expected to concur, which will end the appeals process at Judge Walker’s decision overturning the law.
The Proposition 8 ballot measure was passed in reaction to a decision by the California Supreme Court earlier in 2008 overturning the state’s ban on same-sex marriages, which allowed roughly 18,000 same-sex couples to marry in California during the short window prior to the election. The Supreme Court has since upheld those marriages as valid, though new marriages can not be recognized as a consequence of the proposition. The state also passed a law following the passage of Prop 8 that allows the state to recognize same-sex marriages performed outside of California during that same short window.
Arguing for the proponents of Prop 8, Charles Cooper argued that the interest groups would be given standing if this were a state court case, while Justices weighed whether or not the same standard ought to apply in this Federal Court matter.
Ted Olson (Washington Blade file photo by Michael Key)
Ted Olson, arguing for the plaintiffs, focused on the lack of precedent for such an intervention by an interest group, and claimed finding in favor of the Prop 8 proponents and granting their right to appeal would mean, essentially “amending” the California Constitution. He also argued that allowing Prop 8 proponents to take the place of the state in the case would set a dangerous precedent undermining the authority of the California Attorney General to make such decisions.
“Initiative proponents are elected by no one,” Olson told the justices, as reported by Adam Bink of Courage Campaign and Kate Kendell of the Center for Lesbian Rights. “Proponents took no oath to represent the people.”
When asked what the particular interest the proponents of Prop 8 had in continuing to defend the case, Charles Cooper responded to the justices, “Our interest is to protect and defend our fundamental right to propose initiatives. We have to defend that.”
In response, the justices asked “Doesn’t that right arise before the initiative is qualified?”
“This court has never recognized any distinction between before and after enactment,” Cooper responded. “That wouldn’t make any sense. What the proponents have a right to do is propose valid constitutional amendments. It is inescapable that they then have the right to defend that measure, before OR after enactment.”
However, before his time expired, Ted Olson did his best to counter Cooper’s claims.
“They sure spent a great deal of time and money, and exercised their power to ‘propose and enact.’ What they’re asking for is the power to represent themselves because of a particularized interest, which they don’t have,” Olson argued. “My understanding of California law and case law is that the legislature doesn’t have the power to defend legislation in court unless it specifically deals with the legislative power itself. There is no case, and Cooper agrees there is no case, in which the legislature has the power the proponents are claiming here. I think the initiative power is important, but the constitution of California fundamentally limits the power of the initiative and initiative proponents to exercise their right to propose and defend, that’s it.”
After the hearing, representatives from the American Foundation for Equal Rights were confident and expressed pleasure with the hearing.
“Good justices ask hard questions,” Olson said after the hearing, according to Bink and the Courage Campaign. Olson expressed pleasure with the Supreme Court justices, but emphasized he believes that no matter which direction the Supreme Court decides, the opponents of Prop 8 will prevail.
“We’re sure the US Supreme Court will agree with us,” Olson concluded.
Legal Director from Lambda Legal, Jon Davidson seemed to concur.
“It is often impossible to predict from the questions asked by appellate judges how they will rule and today was no different,” Davidson said in a statement. “All of the judges on the California Supreme Court asked probing questions and seemed concerned about the implications of any decision they might make. We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state.”
However, Shannon Minter legal director of the National Center for Lesbian Rights, who has argued before the California Supreme Court in favor of same-sex marriage, struck a more cautious tone when discussing her reaction to the hearing with veteran LGBT community journalist, Karen Ocamb.
“I was concerned by the tenor of many of the justices’ questions today,” Minter told Ocamb. “The court has a responsibility to enforce the California Constitution, which gives elected state officials—not private initiative sponsors—the authority to decide whether to appeal a federal court decision invalidating a state law.”
Minter continued, “Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures. Permitting special interest groups to usurp that decision-making authority would dramatically change the current law and take a giant step down the road of turning California into a mobocracy.”
Minter expressed concern that a decision in favor of the Prop 8 proponents could have far reaching effects, going beyond just LGBT issues.
“I was disappointed that, with some notable exceptions, too many of the court’s questions today did not address the specific legal questions before them, but rather seemed to glorify the initiative process in the abstract and to abdicate a searching examination of the California Constitution in favor of emotional appeals to ‘the people.’ The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution,” Minter concluded.
“I sincerely hope the Court does not compound that mistake by now giving initiative proponents an unprecedented new power to step outside of their proper legislative role and usurp the power that our Constitution gives only to elected state officials in the executive branch.”
U.S. Supreme Court
Concern over marriage equality in US grows two decades after first Mass. same-sex weddings
Gay and lesbian couples began to marry in Bay State in 2004
Two decades after Massachusetts became the first state to legalize same-sex marriage, a new study reveals both significant progress and ongoing challenges for married LGBTQ couples in the U.S., with a growing sense of insecurity about the future of their rights.
The Williams Institute at UCLA School of Law surveyed 484 married same-sex couples from all 50 states and D.C. The study, released Monday, marks the 20th anniversary of legal same-sex marriage in the U.S.
Researchers found that 93 percent of respondents cited love as a primary reason for marrying, with 75 percent also mentioning legal protections. Over 83 percent reported positive changes in their sense of security, and 74.6 percent noted improved life satisfaction since marrying.
However, the study also highlighted persistent discrimination and growing concerns about the future. About 11 percent of couples who had a wedding reported facing prejudice during the planning process.
Alarmingly, nearly 80 percent of respondents expressed concern about the potential overturning of the 2015 Obergefell v. Hodges decision, which legalized same-sex marriage nationwide. This anxiety has been exacerbated by initiatives like Project 2025, a conservative policy blueprint that some fear could roll back LGBTQ rights if implemented.
The possibility of a former President Donald Trump victory in the upcoming election has further intensified these concerns. Many respondents cited Trump’s previous U.S. Supreme Court appointments and his statements on LGBTQ issues as reasons for their apprehension. One participant stated, “The thought of another Trump presidency keeps me up at night. We’ve come so far, but it feels like our rights could be stripped away at any moment.”
The current political climate has 29 percent of respondents considering moving to another state, with 52.9 percent citing socio-political concerns as a primary reason. This reflects a growing sense of insecurity among LGBTQ couples about their rights and freedoms.
Brad Sears, founding executive director of the Williams Institute, noted, “The data clearly show that marriage equality has had a profound positive impact on same-sex couples and their families. However, it also reveals ongoing challenges and serious concerns about the future of these rights in light of current political trends and the upcoming election.”
Christy Mallory, legal director at the Williams Institute and lead author of the study, added, “This research provides crucial insights into the lived experiences of same-sex couples two decades after marriage equality began in the U.S. The high level of concern about potential loss of rights underscores the continued importance of legal protections and public support for LGBTQ+ equality.”
The study found that 30 percent of surveyed couples have children, with 58.1 percent of those parents reporting that marriage provided more stability for their families. However, many of these families now worry about the security of their legal status in the face of potential policy changes and shifting political landscapes.
As the nation reflects on two decades of marriage equality, the study underscores both the transformative power of legal recognition and the ongoing need for vigilance in protecting LGBTQ+ rights. The findings highlight the complex reality faced by same-sex couples in America today: Celebrating hard-won progress while grappling with uncertainty about the future, particularly in light of upcoming political events and potential shifts in leadership.
State Department
State Department hosts meeting on LGBTQ rights and foreign policy
Event took place before Pride Month reception
Secretary of State Antony Blinken on Thursday hosted a group of LGBTQ activists and politicians from around the world at the State Department.
The event — described as a “Convening on U.S. Foreign Policy: National Security, Inclusive Development, and the Human Rights of LGBTQI+ Persons” — took place before the State Department’s annual Pride Month reception. Participants included:
• Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights
• U.S. Ambassador to the U.N. Linda Thomas-Greenfield
• U.S. Trade Representative Katherine Tai
• U.S. Ambassador to India Eric Garcetti
• Suzanne Goldberg, senior advisor to the Under Secretary of State for Civil Security, Democracy, and Human Rights
• Under Secretary of State for Civilian Security, Democracy, and Human Rights Uzra Zeya
• U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam
• USAID Counselor Clinton D. White
• National Security Council Senior Director for Democracy and Human Rights Kelly Razzouk
• Assistant U.S. Secretary of Health Adm. Rachel Levine
• National Security Council Human Rights Director Jess Huber
• U.N. Assistant Secretary General for Human Rights Ilze Brandt Kehris
• Icelandic Ambassador to the U.S. Bergdís Ellertsdóttir
• Council for Global Equality Co-Executive Director Mark Bromley
• Outright International Senior Advisor for Global Intersex Rights Kimberly Zieselman
• Essy Adhiambo, executive director of the Institute for Equality and Non Discrimination in Kenya
• Pau González, co-chair of Hombres Trans Panamá and PFLAG-Panamá
“Forty-five years ago, thousands gathered in D.C. in what became the first national march for LGBTQI+, demanding their voices be heard,” said Thomas-Greenfield in a post to her X account that showed her speaking at the event. “We must continue to carry forward the spirit of these pioneers and fight for equal rights and dignity for all.”
Forty-five years ago, thousands gathered in DC in what became the first national march for LGBTQI+, demanding their voices be heard.
We must continue to carry forward the spirit of these pioneers and fight for equal rights and dignity for all. 🏳️🌈🏳️⚧️ pic.twitter.com/oph2Ahmfhq
— Ambassador Linda Thomas-Greenfield (@USAmbUN) June 28, 2024
President Joe Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administration’s overall foreign policy.
“LGBTQI+ rights are human rights,” said Blinken. “Our government has a responsibility to defend them, to promote them — here and everywhere.”
Blinken noted consensual same-sex sexual relations remain criminalized in 64 countries, with the death penalty in 11 of them.
He specifically highlighted Uganda’s Anti-Homosexuality Act and Hungarian Prime Minister Viktor Orbán’s government’s “smearing scapegoating, stigmatizing LGBTQI+ persons — vilifying them with degrading labels, denying them equal rights, normalizing violence against them.” (Gay U.S. Ambassador to Hungary David Pressman this month marched in the annual Budapest Pride parade.)
Blinken noted Iraqi MPs earlier this year “passed legislation that punishes same-sex relations with up to 15 years in prison.” He also pointed out that Indonesian lawmakers approved a new criminal code banning extramarital sex.
“In a nation where same-sex couples cannot marry, these laws effectively make all same-sex conduct illegal and they undermine privacy for all Indonesians,” said Blinken.
“We’re defending and promoting LGBTQI+ rights around the world,” he said.
Blinken noted seven countries — Barbados, St. Kitts and Nevis, Antigua and Barbuda, Dominica, Namibia, Singapore, the Cook Islands — have decriminalized consensual same-sex sexual relations over the last two years. He also highlighted Greece, Liechtenstein, and Thailand this year extended marriage rights to same-sex couples, and other countries are banning so-called “conversion therapy.”
“These achievements are possible because of incredibly courageous human rights defenders and government partners on the ground, but I believe America’s support is indispensable,” said Blinken. “When we engage — sometimes publicly, sometimes privately, sometimes both — when we share our own knowledge and experience, we can and we do achieve change.”
Blinken also announced the U.S. now considers sexual orientation and gender identity are part of the International Covenant on Civil and Political Rights that took effect in 1976.
“This is one of the key treaties committing nations to upholding universal rights,” he said.
“In our regular reporting to the council on human rights, we will continue to include incidents of discrimination or abuse committed against LGBTQI+ persons, now with the clear framework of this well-supported interpretation,” added Blinken. “That will further empower our efforts.”
Blinken reiterated this point and the Biden-Harris administration’s commitment to the promotion of LGBTQ and intersex rights abroad when he spoke at the State Department’s Pride Month event.
“Defending, promoting LGBTQI+ rights globally is the right thing to do, but beyond that, it’s the smart and necessary thing to do for our country, for our national security, for our well-being,” he said.
The White House
Jill and Ashley Biden headline White House Pride celebration
First lady celebrated historic pardons of LGBTQ veterans
First lady Jill Biden and the president and first lady’s daughter, Ashley Biden, headlined the White House Pride celebration on the South Lawn on Wednesday, followed by a performance by singer and actress Deborah Cox.
“My dad has built the most pro-equality administration” in history, Ashley Biden said, crediting the work of LGBTQ people of color like Marsha P. Johnson, a prominent figure in the Stonewall uprising of 1969, as well as “so many of you [who] have continued to lead their fearless fighting against against injustice here and around the world.”
She introduced her mother as “the woman who taught me to be myself up showed me in so many ways how I can make a difference” and who “works every single day, tirelessly, to ensure that all people have the opportunities and freedoms that they deserve.”
“I hope that all of you feel that freedom and love on the South Lawn today,” Jill Biden said.
Her remarks were briefly interrupted by a protestor’s chants of “no Pride in genocide,” which was drowned out by chants of “four more years.”
The first lady noted how many of the attendees came “here from states that are passing laws targeting LGBTQ Americans.”
“There are those who see our communities and our families and wish to tear them down,” she said, “those who can’t see that the world is so much bigger and [more] beautiful than they know — but when our homes are threatened, when they strip away our rights, and deny our basic humanity, we say, ‘not on our watch.'”
“Pride is a celebration, but it is also a declaration,” the first lady said, highlighting the U.S. Supreme Court’s ruling in Obergefell v. Hodges nine years ago, which established marriage equality as the law of the land.
She then credited the accomplishments of the Biden-Harris administration on matters of LGBTQ rights, including the repeal of the previous administration’s ban on military service by transgender servicemembers and the FDA’s loosening of restrictions on blood donation by gay and bisexual men.
The first lady also celebrated the president’s announcement earlier on Wednesday that he will pardon LGBTQ veterans who were discharged and court martialed because of their sexual orientation or gender identity.
“We will never stop fighting for this community,” she said.
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Concern over marriage equality in US grows two decades after first Mass. same-sex weddings
Out in the World: LGBTQ news from Europe and Asia
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