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.”
National
Blade reporters reflect on covering Pulse massacre 10 years ago
Orlando stepped up to comfort and support its LGBTQ community
Friday marks 10 years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
The massacre, which, at the time was the deadliest mass shooting in modern U.S. history, left the LGBTQ community in this country and around the world reeling. It also prompted renewed calls for gun control.
The OnePulse Foundation, which Pulse owner Barbara Poma founded after the massacre, raised upwards of $20 million for a memorial that never materialized.
The city of Orlando in 2023 purchased the Pulse property for $2 million. Crews earlier this year demolished the former nightclub. The city of Orlando has pledged $12 million for a permanent memorial that is scheduled to open in 2027.
Washington Blade Editor Kevin Naff and International News Editor Michael K. Lavers reported from Orlando in the days after the massacre. Here are their reflections a decade later.
Describe the scene when you arrived in Orlando. Where did you go first?
NAFF: Most mainstream reporters headed for the Pulse nightclub, but it was already roped off with police keeping bystanders at least a full city block away. Instead, I hurried to The Center, Orlando’s LGBTQ community center, downtown. I expected to find it locked down with tight security but instead the doors were flung open and everyone inside was busy at work. No tears, just dedicated staff and volunteers working the phones to secure visas and free plane tickets for relatives of the victims. The director gave me a tour and in the back storage room were pallets and pallets of bottled water stacked to the ceiling. When I asked what all the water was for, he said the city had issued a call for blood donations and the lines to donate were 1,500 deep in 100-degree heat. So The Center drove around to all the sites to deliver water to all those standing in line.
That scene was so inspiring and a testament to the strength and resiliency of the LGBTQ community. We’d seen tragedy before and knew how to respond.
LAVERS: I arrived in Orlando about 14 hours after the massacre took place. The city was shellshocked.
Equality Florida, the state’s LGBTQ advocacy group, and other organizations held a press conference at The Center shortly after my flight from D.C. landed. I drove there from the airport. Terry DeCarlo, who was The Center’s executive director at the time, along with then-Equality Florida Executive Director Nadine Smith and others spoke on behalf of a community that was reeling. The Center at the press conference handed out business cards that read, “You matter.” I had it in my wallet when I drove to a makeshift memorial that was a block from Pulse — the police had cordoned off the area immediately around the nightclub. A local resident who I interviewed told me that she did not know if her friends who were at Pulse when the gunman opened fire survived. Another person with whom I spoke shared a similar story.
A torrential downpour began shortly after I arrived. The storm was an apt metaphor for the raw emotion of that horrific day.
What’s your most prominent memory of covering the Pulse massacre?
NAFF: I was covering a vigil in downtown Orlando when then-Florida Gov. Rick Scott’s motorcade arrived unannounced. To that point, he had not addressed the LGBTQ angle and seemed to be downplaying the fact that this was an attack on our community. I hurried to the front row as he held an impromptu news conference. To my dismay, he took only three short questions from TV reporters then rushed away. I grabbed his communications director and insisted that Scott take a question from the LGBTQ media. She agreed and told me to wait next to the SUV. When Scott approached, I asked him, “What is your message to LGBTQ Floridians?”
To my surprise, he sputtered, stammered, and broke into tears before telling me, “This was an attack, what else can you say? This was an attack against the gays, an attack against Hispanics, an attack against our country, our nation and it’s disgusting. The biggest thing we do now is ask how to make sure this doesn’t happen again.”
It was his first public acknowledgment that the LGBTQ community was the target of the attack.
LAVERS: Two moments stand out for me.
The first moment is when then-President Barack Obama and then-Vice President Joe Biden traveled to Orlando on June 16, four days after the massacre. I was one of the reporters who the White House asked to be part of the local press pool. I was about 50 feet away from Obama and Biden when they placed bouquets with 49 flowers — one for each of the victims — at a makeshift memorial between City Hall and the Dr. Phillips Center for the Performing Arts in downtown Orlando. Obama in remarks he made to the press pool mentioned one of the gay victims who had once said, “We cannot be afraid.” The emotions of the last four days simply became too much, and I broke down. Another reporter who was part of the press pool who was standing next to me realized I had broken down. She put her hand on my back to console me.
The second moment came a few weeks later when I was in Puerto Rico to cover the community’s response to the massacre and to interview victims’ relatives. Orlando has a very large Puerto Rican community, and nearly half of those who died at Pulse were of Puerto Rican descent.
I drove to Caguas, a city that is roughly 20 miles south of San Juan, the island’s capital, on July 7, and interviewed Aida Velázquez in her small apartment. Her son, Frankie “Jimmy” de Jesús, died at Pulse. Aida talked about her son, and she showed me pictures of him. Jimmy also danced Jíbaro, a Puerto Rican folk dance. The interview took place less than a month after the massacre — Jimmy’s funeral took place in Caguas less than two weeks earlier.
I sat in my car after the interview and sobbed uncontrollably for nearly five minutes. Nothing can possibly prepare you for interviewing a mother who had just lost her child in the most horrific way possible.
How did the local community respond and what about their response gave you hope or inspiration?
NAFF: In addition to the staff at The Center working to assist victims and their families, everyday Orlando residents stepped up to help however they could. At the downtown vigils, straight mothers and fathers carried signs offering hugs to anyone who needed them. I encountered a group of young teenage males who approached a group of law enforcement officers and appeared to perform for them. When they finished, I asked what they were doing and they told me that they were straight friends who lived in Orlando and wanted to do something to help so they composed an uplifting rap song and walked around performing it for anyone who needed cheering up.
LAVERS: The way that Orlando rallied around the LGBTQ community was simply inspiring.
Imam Muhammad Musri, president of the Islamic Society of Central Florida, at a memorial service that took place at the Dr. Phillips Performing Arts Center on June 13 said his organization was “united as Americans when it comes to standing with the LGBT community and their rights to live freely and to practice their lives here.” This comment underscored the outpouring of support that Orlando showed its LGBTQ community after Pulse. It was also a call for the better angels among us to reject hate in all of its forms.
What surprised you most about the experience?
NAFF: I was most surprised — and moved — after talking to Rev. Debreita Taylor of Oasis Fellowship Ministries, an LGBTQ-affirming ministry.
“My message is love. Period. Love. Period. There’s nothing in the word of God that faith leaders can go to that teaches hate,” she told me. “Have faith and believe that evil and hate can be eradicated one person at a time. How do you treat someone? How do you embrace someone who treats you wrong? We all bleed, laugh, hope and have great victories and major defeats. And so, you know me, even if you don’t know my name — I’m you.”
LAVERS: It admittedly took me quite a while to fully process what I experienced in Orlando — I was focused on doing my job as a reporter, which was to cover the story, and, most importantly, show the human impact of what had happened. I suppose one surprising aspect of the time I spent in Orlando was that I found myself feeling more defiant against those who seek to destroy our community. They want us to live in fear, and I refuse to give them that satisfaction.
What, if anything, changed as a result of Pulse?
NAFF: In the immediate aftermath of the attack, queer spaces began rethinking their approach to security, which has served us well in the years since. Sadly, just a year later, Pulse was bumped to the No. 2 deadliest mass shooting in U.S. history when a gunman opened fire on the Route 91 Harvest music festival in Las Vegas, killing 60 people. Americans and their politicians never learn from these largely preventable tragedies. The carnage continues.
LAVERS: Gun violence remains a shameful scourge in this country. Our community remains vulnerable to violence and discrimination. President Donald Trump, Vice President JD Vance, and other politicians here in Washington, around the country, and overseas continue to use our community to advance an anti-equality agenda. The carnage continues, as my colleague correctly notes, but our community remains strong and defiant. That gives me hope.
National
Queen Jean is Tony’s first transgender winner
Designer/activist wins for work on ‘Cats: The Jellicle Ball’
It was a historic night at the 79th annual Tony Awards on Sunday as Queen Jean won the award for Best Costume Design of a Musical, making her the first out transgender person to win a Tony.
“This experience has been monumental. We are here for the legacy of queer people, trans people,” she said. “We are taking up space in ways we have to take up space. We have to shift the paradigm. So I just want to say, thank you all so much for this incredible honor. The world right now is deeply, deeply combating so many ailments, and we know as a society that when we come together, we can make real, permanent change.”
She won the award for her work on “Cats: The Jellicle Ball” and was also nominated for best costume design of a play for “Liberation.”
In addition to her stage work, Queen Jean is the founder of Black Trans Liberation, an organization that supports trans and gender-nonconforming people in New York City.
National
Madonna turns Times Square into massive dance floor
Pop icon celebrates Pride month with surprise performance
Pop icon Madonna celebrated Pride month with a pop-up performance in New York City’s Times Square on Thursday to the delight of 50,000 fans.
She performed for about 15 minutes high above street level, including several songs from her new album “Confessions II” due on July 3, along with a trio of songs from the first “Confessions on a Dance Floor.”
In addition to the brand new “Love Sensation,” she performed “I Feel So Free” and “Bring Your Love,” plus “Hung Up,” “Get Together” and “I Love New York.” She wished the crowd a happy Pride season; the event was shared with audiences through Grindr’s first-ever livestream.
German group slams White House’s LGBTQ rights record ahead of World Cup
Gay 1920s-era Hollywood star to be honored in Staunton, Va.
Why I’m supporting Gary Goodweather for D.C. mayor
Don’t just vote for change — vote for Hope Solomon for mayor
Vote Kenyan McDuffie for D.C. mayor
PHOTOS: ‘Soul Divas’
‘Mighty Real’ explores history of LGBTQ music
D.C.’s housing reality: Cautious optimism meets landlord strain
Hundreds of thousands expected to attend D.C. Pride events
