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Another round for Prop 8 in Calif. state court?

Anti-gay groups call for additional input, but legal experts say it’s unlikely

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Supreme Court, gay news, Washington Blade

Prop 8 proponents say the Supreme Court may want to send the case back to state court. (Washington Blade file photo by Michael Key)

Anti-gay groups arguing in favor of California’s Proposition 8 are advising the U.S. Supreme Court to send the lawsuit back to state court yet again before deciding to rule on the case based on standing ā€” although legal experts dismiss such a request as a desperate plea.

As noted in SCOTUSblog, the request to send the case back to the California State Court is found in the reply brief that anti-gay groups, such as ProtectMarriage.com, filed on Tuesday. The request is virtually hidden within the brief; it’s found on the footnote on page 6.

The California Supreme Court has already certified in November 2011 that anti-gay groups have standing to defend Prop 8 in court. After being posed the question by the U.S. Ninth Circuit Court of Appeals, the state court determined anti-gay groups had standing to defend the ballot initiative in the wake of the decision from California officials ā€” Gov. Jerry Brown and Attorney General Kamala Harris ā€” to decline to defend Prop 8 in court.

But in the reply brief this week, proponents of Prop 8 assert that neither the California Supreme Court nor the Ninth Circuit addressed the issue of whether anti-gay groups have suffered “personal injury” ā€” a quality that is used to determine standing ā€” and suggest justices may want to return the case to state court to address the issue.

“Accordingly, it may be appropriate again to certify this question to the California Supreme Court if this Court concludes that Petitioners, despite their established authority to represent the Stateā€™s interest, must also demonstrate personal injury to satisfy Article III,” the footnote states.

The standing issue in Prop 8 is important because if the Supreme Court determines anti-gay groups don’t have standing, U.S. District Judge Vaughn Walker’s decision striking down Prop 8 would stand, allowing same-sex couples to marry in California. Because the Supreme Court has a history of limiting standing, there’s a good chance the court could rule on Prop 8 in this manner.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said a decision to send the case back to the state court would accomplish two things: delay proceedings in the case and reconfigure the standing issue in favor of proponents of the same-sex marriage ban.

“This is both an attempt to extend the time at which same-sex couples may marry in California (i.e., send it back for more litigation, rather than allow couples to marry) and a reasonable way to argue that the standing question isnā€™t completely resolved (and would ultimately favor standing),” NeJaime said.

But legal experts who spoke with the Blade said they don’t expect the Supreme Court to send the case back to the state court because the “personal injury” issue is now a matter of federal law, not state law.

Suzanne Goldberg, co-director of Columbia University’s Center for Gender and Sexuality Law, was among those saying it’s “extremely unlikely” the Supreme Court would once again send the Prop 8 case back to the California State Court.

“If the Supreme Court decides to address that question, it is perfectly capable of evaluating the sponsor’s injury on its own,” Goldberg said. “The court regularly makes assessments of whether litigants have a sufficient injury to proceed with a case in a federal court. This is not a question that the California Supreme Court would have to resolve.”

Goldberg added state courts have an approach to assessing standing that’s different from federal courts, so the Prop 8 lawsuit is “particularly a question where the state court determination would not carry over to the federal court.”

“That footnote seemed to me to be a desperate plea recognizing their standing argument is quite weak,” Goldberg said.

Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, was similarly dismissive about the notion of sending the Prop 8 case back to state court.

“I see that footnote as a sign the proponents of Prop 8 are very worried that the Supreme Court will decide they did not have standing to appeal and that Judge Walkerā€™s decision striking down Prop 8 will stand,” Stoll said. “They appear desperate to find a way to avoid that result.”

Stoll said the California Supreme Court already delivered a “detailed opinion” on standing and justices are unlikely to seek additional input from the state court.

“Standing is ultimately an issue of federal law, and I believe the U.S. Supreme Court will decide that it has enough information from the state courts to resolve that federal issue now,” Stoll said.

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National

House Republicans propose steep cuts in federal AIDS budget

Advocacy groups say move would eliminate ā€˜Ending HIV Epidemicā€™ initiative

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The Ending the HIV Epidemic initiative was launched during the administration of President Donald Trump.

The Republican-controlled U.S. House Subcommittee on Labor, Health, and Human Services, Education, and Related Agencies approved a spending bill on June 26 that calls for cutting at least $419 million from federal AIDS programs that AIDS activists say would have a devastating impact on efforts to greatly reduce the number of new HIV infections by 2030.

The subcommitteeā€™s proposed bill, which includes billions of dollars in cuts in a wide range of other federal health, education, and human services related programs, is scheduled to be considered by the full House Appropriations Committee on July 10. Officials with AIDS advocacy groups say they are hopeful that the full committee, like last year, will refuse to approve the proposed cuts in the AIDS budget.

The proposed GOP cuts would eliminate $214 million from the U.S. Centers for Disease Control and Preventionā€™s HIV prevention programs, $190 million from the Ryan White HIV/AIDS Program, and $15 million from the Department of Health and Human Services Secretaryā€™s Minority HIV/AIDS Program.

Activists say the impact of those cuts would kill the federal governmentā€™s Ending the HIV Epidemic initiative, which among other things, calls for reducing the number of new HIV infections in the U.S. by 75 percent by 2025 and by 90 percent by 2030. The activists point out that ironically the Ending the HIV Epidemic initiative was launched during the administration of President Donald Trump.

 ā€œInstead of providing new investments in ending HIV by increasing funding for testing, prevention programs, such as PrEP, and life-saving care and treatment, House Republicans are again choosing to go through a worthless exercise of cutting programs that the American people depend on and will never pass,ā€ said Carl Schmid, executive director of the HIV + Hepatitis Policy Institute.

ā€œWhile we vigorously fight these cuts, we look forward to working with the entire Congress in a bipartisan fashion on spending bills that can actually become law,ā€ Schmid said in a statement.

 Schmid noted that the bill also includes provisions known as ā€œpolicy ridersā€ that would take away rights and protections from women, such as access to birth control and abortion, and for minorities, including LGBTQ people.

According to a statement released by the office of Rep. Rosa DeLauro (D-Conn.), who is the ranking minority member of the House Appropriations Committee, one of the policy riders would ā€œblock the Biden administrationā€™s policies to ensure nondiscrimination on the basis of gender identity and sexual orientation.ā€™  The statement says another policy rider would ā€œprevent policies or programs intended to promote diversity, equality, or inclusion.ā€

Most political observers believe the Democratic-controlled U.S. Senate would also kill the GOP proposed policy riders and cuts in the AIDS budget if the full Republican-controlled House were to approve the budget bill passed by the appropriations subcommittee.

Rep, Tom Cole (R-Okla.), who serves as chair of the full House Appropriations Committee, released a statement on June 27 defending the  subcommitteeā€™s bill and its proposed spending cuts. ā€œThe bill provides appropriate and fiscally responsible funding to ensure these departments can continue to perform their core missions while also acknowledging the fiscal realities facing our nation,ā€ he said.

ā€œImportantly, the bill pushes back on the Biden administrationā€™s out-of-touch progressive policy agenda, preventing this White House from finalizing or implementing controversial rules or executive orders,ā€ Cole said in his statement. ā€œIt also preserves long standing bipartisan policy provisions protecting the right to life.ā€

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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 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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