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House Dems enter fight in Calif. case against DOMA

Pelosi, Nadler lead group of 132 lawmakers

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Gay News, Washington Blade, Nancy Pelosi

House Minority Leader Nancy Pelosi (Blade photo by Michael Key)

A group of 132 House Democrats — led by House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) — filed on Tuesday a friend-of-the-court brief against the Defense of Marriage Act to assist litigation challenging the anti-gay law.

The brief was filed before the U.S. Ninth Circuit Court of Appeals in the case of Golinski v. U.S. Office of Personnel Management. Lambda Legal andĀ Morrison & Foerster filed the suit on behalf of Karen Golinski, a court employee at the U.S. Ninth Circuit of Court of Appeals who’s seeking partner benefits for her spouse, but was denied them because of DOMA.

In addition to Pelosi and Nadler, Democrats who signed the amicus brief against DOMA include all members of Democratic leadership — including House Democratic Whip Steny Hoyer (D-Md.) and Assistant Minority Leader Jim Clyburn (D-S.C.) — as well as Rep. John Conyers (D-Mich), ranking member of the House Judiciary Committee, and all four openly gay members of Congress: Reps. Barney Frank (D-Mass.), Tammy Baldwin (D-Wis.), Jared Polis (D-Colo.) and David Cicilline (D-R.I.).

The Obama administration stopped defending DOMA in court in February 2011. The Bipartisan Legal Advisory Group, or BLAG, a House body convened by Speaker John Boehner (R-Ohio), has since taken up defense of the anti-gay law in the administration’s stead.

The 30-page brief makes the case against Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, in several ways, emphasizing that BLAG doesn’t speak for the entirety of the U.S. House.Ā House Democrats have pledged to file a brief in each case where BLAG acts to defend DOMA.

First, the lawmakers argue DOMA warrants heightened scrutiny because Congress has a history of targeting gay and lesbian Americans with discriminatory laws — a position that is held by the Obama administration.

House Democrats then argue that DOMA is unconstitutional because Congress hastily passed it in 1996 for political reasons and because the law undercuts Congress’ interest in protecting families and respecting state sovereignty.

“Congress did not proceed ā€œcautiouslyā€ as BLAG now suggests, … but acted hastily, and in a manner that reflects the reality that, as a historically disfavored minority, gay men and lesbians have often been targeted for harm based on stereotypes, bias, and the unfortunate desire to create partisan wedge issues for political gain,” the brief states.

Shelbi Day, a staff attorney for Lambda Legal, said the brief filed by House Democrats “sends a powerful message” and would boost arguments that DOMA is unconstitutional.

“The brief filed by Democratic leadership of the U.S. House ofĀ Representatives, joined by 130 other House Members sends a powerful messageĀ and underscores just how problematic and unconstitutional DOMA is,” Day said. “As theĀ brief points out, DOMA is not the rational result of impartial lawmakingĀ but rather was enacted in haste with no legitimate government purpose. WeĀ welcome this brief and applaud the members of Congress who have signed it.”

It’s not the first time that House Democrats have filed a friend-of-the-court brief asserting DOMA is unconstitutional. In November, House Democrats filed a similar brief before the U.S. First Circuit Court of Appeals inĀ the consolidated case of Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.

The appeals court has since issued a decision that the anti-gay law is unconstitutional.Ā Late last month, Boehner appealed the First Circuit decision finding DOMA unconstitutional to the Supreme Court.

The names on this brief are almost identical to the previous brief, although there are some differences. Former Rep. Jay Islee signed the first brief but not the second because he’s since retired from Congress to run for governor of Washington State. Former Rep. Donald Payne of New Jersey signed the first brief, but died on March 6 as he was battling colon cancer.

But a new name on the brief is Rep. Suzanne Bonamici (D-Ore.). The lawmaker, a co-sponsor of the Respect for Marriage Act, wasn’t yet elected to office at the time the first brief was filed.Ā Bonamici won a special election on Jan. 31.

Other parties have filed friend-of-the-court briefs in support of the anti-gay law. Among them is one filed by Senate Republicans, including Senate Minority Leader Mitch McConnell (R-Ky.), Republican attorneys general from 14 states; and another from Republican former U.S. attorneys general Edwin Messe and John Ashcroft.

Oral arguments in the Golinski case are set before the Ninth Circuit for the week of Sept. 10. The Justice Department has asked the Supreme Court to consider the case along with Massachusetts v. HHS, but oral arguments will take place regardless before the Ninth Circuit in September because justices won’t be able to decide whether to hear the case until they return from summer recess in October.

NOTE: The last paragraph of this article has been edited for clarity.

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Federal Government

HHS to retire 988 crisis lifeline for LGBTQ youth

Trevor Project warns the move will ‘put their lives at risk’

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Robert F. Kennedy, Jr. appears on HBO's "Real Time with Bill Maher" in April 2024. (Screen capture via YouTube)

The U.S. Department of Health and Human Services is planning to retire the national 988 crisis lifeline for LGBTQ youth on Oct. 1, according to a preliminary budget document obtained by the Washington Post.

Introduced during the Biden-Harris administration in 2022, the hotline connects callers with counselors who are trained to work with this population, who are four times likelier to attempt suicide than their cisgender or heterosexual counterparts.

ā€œSuicide prevention is about risk, not identity,” said Jaymes Black, CEO of the Trevor Project, which provides emergency crisis support for LGBTQ youth and has contracted with HHS to take calls routed through 988.

“Ending the 988 Suicide and Crisis Lifeline’s LGBTQ+ youth specialized services will not just strip away access from millions of LGBTQ+ kids and teens — it will put their lives at risk,ā€ they said in a statement. ā€œThese programs were implemented to address a proven, unprecedented, and ongoing mental health crisis among our nation’s young people with strong bipartisan support in Congress and signed into law by President Trump himself.ā€

“I want to be clear to all LGBTQ+ young people: This news, while upsetting, is not final,” Black said. “And regardless of federal funding shifts, the Trevor Project remains available 24/7 for anyone who needs us, just as we always have.ā€

The service for LGBTQ youth has received 1.3 million calls, texts, or chats since its debut, with an average of 2,100 contacts per day in February.

ā€œI worry deeply that we will see more LGBTQ young people reach a crisis state and not have anyone there to help them through that,ā€ said Janson Wu, director of advocacy and government affairs at the Trevor Project. ā€œI worry that LGBTQ young people will reach out to 988 and not receive a compassionate and welcoming voice on the other end — and that will only deepen their crisis.ā€

Under Trump’s HHS secretary, Robert F. Kennedy, Jr., the agency’s departments and divisions have experienced drastic cuts, with a planned reduction in force of 20,000 full-time employees. The Substance Abuse and Mental Health Services Administration has been sunset and mental health services consolidated into the newly formed Administration for a Healthy America.

The budget document reveals, per Mother Jones, “further sweeping cuts to HHS, including a 40 percent budget cut to the National Institutes of Health; elimination of funding for Head Start, the early childhood education program for low-income families; and a 44 percent funding cut to the Centers for Disease Control, including all the agency’s chronic disease programs.”

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U.S. Supreme Court

Supreme Court hears oral arguments in LGBTQ education case

Mahmoud v. Taylor plaintiffs argue for right to opt-out of LGBTQ inclusive lessons

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Tuesday heard oral arguments in Mahmoud v. Taylor, a case about whether Montgomery County, Md., public schools violated the First Amendment rights of parents by not providing them an opportunity to opt their children out of reading storybooks that were part of an LGBTQ-inclusive literacy curriculum.

The school district voted in early 2022 to allow books featuring LGBTQ characters in elementary school language arts classes. When the county announced that parents would not be able to excuse their kids from these lessons, they sued on the grounds that their freedom to exercise the teachings of their Muslim, Jewish, and Christian faiths had been infringed.

The lower federal courts declined to compel the district to temporarily provide advance notice and an opportunity to opt-out of the LGBTQ inclusive curricula, and the 4th U.S. Circuit Court of Appeals determined that the parents had not shown that exposure to the storybooks compelled them to violate their religion.

ā€œLGBTQ+ stories matter,” Human Rights Campaign President Kelley Robinson said in a statement Tuesday. ā€œThey matter so students can see themselves and their families in the books they read — so they can know they’re not alone. And they matter for all students who need to learn about the world around them and understand that while we may all be different, we all deserve to be valued and loved.”

She added, “All students lose when we limit what they can learn, what they can read, and what their teachers can say. The Supreme Court should reject this attempt to silence our educators and ban our stories.ā€

GLAD Law, NCLR, Family Equality, and COLAGE submitted a 40-page amicus brief on April 9, which argued the storybooks “fit squarely” within the district’s language arts curriculum, the petitioners challenging the materials incorrectly characterized them as “specialized curriculum,” and that their request for a “mandated notice-and-opt-out requirement” threatens “to sweep far more broadly.”

Lambda Legal, the Leadership Conference on Civil and Human Rights, PFLAG, and the National Women’s Law Center announced their submission of a 31-page amicus brief in a press release on April 11.

ā€œAll students benefit from a school climate that promotes acceptance and respect,ā€ said Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal.  ā€œEnsuring that students can see themselves in the curriculum and learn about students who are different is critical for creating a positive school environment. This is particularly crucial for LGBTQ+ students and students with LGBTQ+ family members who already face unique challenges.ā€

The organizations’ brief cited extensive social science research pointing to the benefits of LGBTQ-inclusive instruction like “age-appropriate storybooks featuring diverse families and identities” benefits all students regardless of their identities.

Also weighing in with amici briefs on behalf of Montgomery County Public Schools were the National Education Association, the ACLU, and the American Psychological Association.

Those writing in support of the parents challenging the district’s policy included the Center for American Liberty, the Manhattan Institute, Parents Defending Education, the Alliance Defending Freedom, the Trump-Vance administration’s U.S. Department of Justice, and a coalition of Republican members of Congress.

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U.S. Supreme Court

LGBTQ groups: SCOTUS case threatens coverage of preventative services beyond PrEP

Kennedy v. Braidwood oral arguments heard Monday

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HHS Secretary Robert F. Kennedy, Jr. (Washington Blade photo by Michael Key)

Following Monday’s oral arguments before the U.S. Supreme Court in Kennedy v. Braidwood Management, Inc., LGBTQ groups issued statements warning the case could imperil coverage for a broad swath of preventative services and medications beyond PrEP, which is used to reduce the risk of transmitting HIV through sex.

Plaintiffs brought the case to challenge a requirement that insurers and group health plans cover the drug regimen, arguing that the mandate “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.ā€

The case has been broadened, however, such that cancer screenings, heart disease medications, medications for infants, and several other preventive care services are in jeopardy, according to a press release that GLAAD, Lambda Legal, PrEP4All, Harvard Law’s Center for Health Law and Policy Innovation (CHLPI), and the Center for HIV Law and Policy (CHLP) released on Monday.

The Trump-Vance administration has argued the independent task force responsible for recommending which preventative services must be covered with no cost-sharing for patients is constitutional because the secretary of the U.S. Department of Health and Human Services can exercise veto power and fire members of the volunteer panel of national experts in disease prevention and evidence-based medicine.

While HHS secretaries have not exercised these powers since the Affordable Care Act was passed in 2010, Braidwood could mean Trump’s health secretary, Robert F. Kennedy Jr., takes a leading role in determining which services are included in the coverage mandate.

Roll Call notes the Supreme Court case comes as the administration has suspended grants to organizations that provide care for and research HIV while the ongoing restructuring of HHS has raised questions about whether the ā€œEnding the HIV Epidemicā€ begun under Trump’s first term will be continued.

ā€œToday’s Supreme Court hearing in the Braidwood case is a pivotal moment for the health and rights of all Americans,” said GLAAD President Sarah Kate Ellis. “This case, rooted in discriminatory objections to medical necessities like PrEP, can undermine efforts to end the HIV epidemic and also jeopardize access to essential services like cancer screenings and heart disease medications, disproportionately affecting LGBTQ people and communities of color.”

She added, “Religious exemptions should not be weaponized to erode healthcare protections and restrict medically necessary, life-saving preventative healthcare for every American.ā€

Lambda Legal HIV Project Director Jose Abrigo said, ā€œThe Braidwood case is about whether science or politics will guide our nation’s public health policy. Allowing ideological or religious objections to override scientific consensus would set a dangerous precedent. Although this case began with an attack on PrEP coverage, a critical HIV prevention tool, it would be a serious mistake to think this only affects LGBTQ people.”

“The real target is one of the pillars of the Affordable Care Act: The preventive services protections,” Abrigo said. “That includes cancer screenings, heart disease prevention, diabetes testing, and more. If the plaintiffs succeed, the consequences will be felt across every community in this country, by anyone who relies on preventive care to stay healthy.”

He continued, “What’s at stake is whether we will uphold the promise of affordable and accessible health care for all or allow a small group of ideologues to dismantle it for everyone. We as a country are only as healthy as our neighbors and an attack on one group’s rights is an attack on all.ā€

PrEP4All Executive Director Jeremiah Johnson said, “We are hopeful that the justices will maintain ACA protections for PrEP and other preventive services, however, advocates are poised to fight for access no matter the outcome.”

He continued, “Implementing cost-sharing  would have an enormous impact on all Americans, including LGBTQ+ individuals. Over 150 million people could suddenly find themselves having to dig deep into already strained household budgets to pay for care that they had previously received for free. Even small amounts of cost sharing lead to drops in access to preventive services.”

“For PrEP, just a $10 increase in the cost of medication doubled PrEP abandonment rates in a 2024 modeling study,” Johnson said. “Loss of PrEP access would be devastating with so much recent progress in reining in new HIV infections in the U.S. This would also be a particularly disappointing time to lose comprehensive coverage for PrEP with a once every six month injectable version set to be approved this summer.ā€

ā€œToday’s oral arguments in the Braidwood case underscore what is at stake for the health and well-being of millions of Americans,” said CHLPI Clinical Fellow Anu Dairkee. “This case is not just about legal technicalities — it is about whether people across the country will continue to have access to the preventive health services they need, without cost sharing, regardless of who they are or where they come from.”

She continued, “Since the Affordable Care Act’s preventive services provision took effect in 2010, Americans have benefited from a dramatic increase in the use of services that detect disease early, promote healthy living, and reduce long-term health costs. These benefits are rooted in the work of leading scientists and public health experts, including the U.S. Preventive Services Task Force, whose recommendations are based on rigorous, peer-reviewed evidence.”

“Any shift away from cost-free access to preventive care could have wide-ranging implications, potentially limiting access for those who are already navigating economic hardship and health disparities,” Dairkee said. “If Braidwood prevails, the consequences will be felt nationwide. We risk losing access to lifesaving screenings and preventive treatments that have become standard care over the past decade.”

“This case should serve as a wake-up call: Science, not politics, must guide our health care system,” she said. “The health of our nation depends on it.ā€

ā€œWe are grateful for the Justices who steadfastly centered constitutionality and didn’t allow a deadly political agenda to deter them from their job at hand,” said CHLP Staff Attorney Kae Greenberg. “While we won’t know the final decision until June, what we do know now is not having access to a full range of preventative healthcare is deadly for all of us, especially those who live at the intersections of racial, gender and economic injustice.”

“We are crystal clear how the efforts to undermine the ACA, of which this is a very clear attempt, fit part and parcel into an overall agenda to rollback so much of the ways our communities access dignity and justice,” he said. “Although the plaintiffs’ arguments today were cloaked in esoteric legal language, at it’s heart, this case revolves around the Christian Right’s objection to ‘supporting’ those who they do not agree with, and is simply going to result in people dying who would otherwise have lived long lives.”

“This is why CHLP is invested and continues in advocacy with our partners, many of whom are included here,” Greenberg said.

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