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212 congressional Dems call on court to overturn DOMA

In first, Senators join House Dems in saying anti-gay law is unconstitutional

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Tammy Baldwin, United States Senate, Wisconsin, Democratic Party, gay news, Washington Blade
Tammy Baldwin, United States Senate, Wisconsin, Democratic Party, gay news, Washington Blade

Sen. Tammy Baldwin was among the signers of the congressional Democrats brief against DOMA (Washington Blade photo by Michael Key)

An unprecedented coalition of 212 House and Senate Democrats have joined together in calling on the U.S. Supreme Court to strike down the anti-gay Defense of Marriage Act.

In a 35-page brief filed on Friday, congressional Democrats argue DOMA should be struck down because the law should be subject to heightened scrutiny and the law singles out gay and lesbian couples for harm. The case challenging the statute is Windsor v. United States.

“DOMA imposes a sweeping and unjustifiable federal disability on married same-sex couples,” the brief concludes. “It is ‘class legislation’ that lacks any rational connection to legitimate federal interests, thus violating the Fifth Amendmentā€™s equal-protection guarantee.”

While House Democrats have filed friend-of-the-court briefs in cases challenging DOMA at lower appellate courts, the latest brief is unprecedented because for the first time Senate Democrats have signed on as well. The 172 House Democrats who signed the brief were joined by 40 Senate Democrats.

House Democrats who signed the brief include House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.), who lead the effort to gather signatures, as well as the six openly LGB members of the U.S. House: Reps. Jared Polis (D-Colo.), David Cicilline (D-R.I.), Sean Patrick Maloney (D-N.Y.), Mark Pocan (D-Wis.), Kyrsten Sinema (D-Ariz.) and Mark Takano (D-Calif.).

Senators who joined in the effort are lesbian Sen. Tammy Baldwin (D-Wis.) as well as Senate Majority Leader Harry Reid (D-Nev.), Assistant Majority Leader Richard Durbin (D-Ill.) and Senate Judiciary Committee Chair Patrick Leahy (D-Vt.).

The brief devotes significant attention to disputing the arguments in favor of DOMA made by the House Republican-led Bipartisan Legal Advisory Group ā€” which has taken up defense of DOMA in place of the administration ā€” particularly BLAG’s argument that gays enjoy political power and thus aren’t a suspect class.

Congressional Democrats take note of how the LGBT people unable has been unable pass legislation to institute federal protections against job bias ā€” the Employment Non-Discrimination Act ā€” as an example of their political powerlessness.

“In fact, in the nearly twenty years since it was first introduced, ENDA passed only once in the House and never in the Senate,” the brief states. “That gay men and lesbians have been unable to achieve even the modest goal of obtaining basic protection against employment discrimination ā€” despite the fact that 89 percent of the American people supports such protection ā€” shows that BLAG is flat wrong in contending that gay men and lesbians enjoy ‘remarkable political clout.'”

The brief also details harm that DOMA causes same-sex couples who are unable to receive federal benefits of marriage ā€” as well as the harm the statute causes children living in these families.

“Many married lesbians and gay men raise children together,” the brief states. “DOMA harms them and their children, and affords no benefit to different-sex couples or their children. It thus cannot survive equal protection review.”

Notably, the brief refrains from making the argument that Congress passed DOMA in 1996 out of animus ā€” a position held by many LGBT advocates ā€” and instead maintains it was made law because members of Congress at the time didn’t know gay people.

“From our perspective ā€” including those of us who voted for DOMA ā€” debate and passage of the law did not necessarily arise ‘from malice or hostile animus,’ but instead from ‘insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves,'” the brief states. “While fear and distrust of families different from our own may explain why DOMA passed by comfortable majorities in 1996, it does not obviate the need for a constitutionally permissible justification for the law.”

Evan Wolfson, president of Freedom to Marry, commended congressional Democrats speaking out against DOMA before the Supreme Court.

“It’s a key indicator of how indefensible the so-called Defense of Marriage Act is that now literally hundreds of members of Congress are signing a brief repudiating it,” Wolfson said. “These senators and representatives, like the American people they serve, know that the government shouldn’t be assigning second-class status to legally married same-sex couples.”

No Republicans signed the brief. Even though Reps. Ileana Ros-Lehtinen (R-Fla.) and Richard Hanna (R-N.Y.) have signed on as co-sponsors to legislation that would repeal DOMA ā€” and penned their names to another brief from 131 Republicans arguing that California’s Proposition 8 is unconstitutional ā€” their names are absent from the DOMA brief.

Ilan Kayatsky, a Nadler spokesperson, deferred comment on the absence of any Republican names from the DOMA brief to Republicans. Neither Ros-Lehtinen’s nor Hanna’s office immediately responded to a request to comment.

The argument presented in the brief is along the lines of the argument that the Obama administration made against DOMA in the brief the Justice Department filed last month.

On Thursday, the administration also filed a brief before the Supreme Court arguing Prop 8 is unconstitutional in addition to the DOMA brief. However, congressional Democrats didn’t do the same and only submitted on brief on DOMA.

Drew Hammill, a Pelosi spokesperson, said the Democratic leader was focused on building support for the DOMA brief and its argument that DOMA should be subject to heightened scrutiny will assist in efforts to overturn California’s marriage ban.

“The brief provides the congressional membersā€™ perspective on why there is absolutely no legitimate federal interest in discrimination, and why, given the history of how DOMA was enacted, heightened judicial scrutiny is needed for federal laws that discriminate against the LGBT community,” Hammill said. “In making the case for heightened scrutiny, the amicus brief will assist the efforts to overturn Proposition 8.”

Hammill also said Pelosi has spoken out against Prop 8 and “appreciates” the Justice Department’s filing against the constitutional ban on same-sex marriage in California.

“From the outset, Leader Pelosi has strongly opposed Proposition 8, and believes that the legal advocacy by opponents of Proposition 8 has been outstanding,” Hammill said. “The Leader looks forward to the day when all Californians ā€“ and indeed, all Americans everywhere – have the right to marry who they love.Ā  She appreciates the Presidentā€™s strong leadership in favor of overturning Proposition 8 and of striking down DOMA.”

Asked in a follow-up email to clarify whether Pelosi believes Prop 8 is unconstitutional, Hammill replied, “She has said so repeatedly.”

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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

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(Bigstock photo)

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.

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State Department

State Department hosts meeting on LGBTQ rights and foreign policy

Event took place before Pride Month reception

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Secretary of State Antony Blinken speaks at the State Department Pride Month event on June 27, 2024. (Screen capture via Forbes Breaking News YouTube)

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 ā€” described as a “Convening on U.S. Foreign Policy: National Security, Inclusive Development, and the Human Rights of LGBTQI+ Persons” ā€” took place before the State Department’s annual Pride Month reception. Participants included:

ā€¢ Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights

ā€¢ U.S. Ambassador to the U.N. Linda Thomas-Greenfield

ā€¢ U.S. Trade Representative Katherine Tai

ā€¢ U.S. Ambassador to India Eric Garcetti

ā€¢ Suzanne Goldberg, senior advisor to the Under Secretary of State for Civil Security, Democracy, and Human Rights

ā€¢ Under Secretary of State for Civilian Security, Democracy, and Human Rights Uzra Zeya

ā€¢ U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam

ā€¢ USAID Counselor Clinton D. White

ā€¢ National Security Council Senior Director for Democracy and Human Rights Kelly Razzouk

ā€¢ Assistant U.S. Secretary of Health Adm. Rachel Levine

ā€¢ National Security Council Human Rights Director Jess Huber

ā€¢ U.N. Assistant Secretary General for Human Rights Ilze Brandt Kehris

ā€¢ Icelandic Ambassador to the U.S. BergdĆ­s EllertsdĆ³ttir

ā€¢ Council for Global Equality Co-Executive Director Mark Bromley

ā€¢ Outright International Senior Advisor for Global Intersex Rights Kimberly Zieselman

ā€¢ Essy Adhiambo, executive director of the Institute for Equality and Non Discrimination in Kenya

ā€¢ Pau GonzĆ”lez, co-chair of Hombres Trans PanamĆ” and PFLAG-PanamĆ”

“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.”

President Joe Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administrationā€™s overall foreign policy.

“LGBTQI+ rights are human rights,” said Blinken. “Our government has a responsibility to defend them, to promote them ā€” 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 OrbĆ”n’s government’s “smearing scapegoating, stigmatizing LGBTQI+ persons ā€” 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.

“Weā€™re defending and promoting LGBTQI+ rights around the world,” he said.

Blinken noted seven countries ā€” Barbados, St. Kitts and Nevis, Antigua and Barbuda, Dominica, Namibia, Singapore, the Cook Islands ā€” 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 Americaā€™s support is indispensable,” said Blinken. “When we engage ā€” sometimes publicly, sometimes privately, sometimes both ā€” 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.Ā “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, itā€™s the smart and necessary thing to do for our country, for our national security, for our well-being,” he said.

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The White House

Jill and Ashley Biden headline White House Pride celebration

First lady celebrated historic pardons of LGBTQ veterans

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First lady Jill Biden speaks at the White House Pride event on June 26. (Washington Blade photo by Michael Key)

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 ā€” 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.

First lady Jill Biden and daughter, Ashley Biden, attend the White House Pride celebration on June 26, 2024. (Washington Blade photo by Michael Key)
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