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10 years later, another Supreme wait

Attorneys for landmark gay rights cases compare their significance to pending lawsuits

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Mary Bonauto, Paul Smith, gay news, Washington Blade
The U.S. Supreme Court (Washington Blade file photo by Michael Key)

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

Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.

In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.

The two cases currently before the court ā€” Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act ā€” are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts.Ā Still, they’re similar in terms of their potential significance.

The two attorneys who made arguments before the courts in the decades-old lawsuits ā€” in the Goodridge case, Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, and, in the Lawrence case, Paul Smith, a partner at Jenner & Block ā€” acknowledged the magnitude of the cases both then and now, but said it’s hard to compare the significance of the older ones to the newer ones.

Smith said we won’t know the significance of the DOMA and Prop 8 cases until the Supreme Court rules on them, but touted the Lawrence decision striking down sodomy bans across the country as significant in any event.

“It provided the foundation for all the progress that has been made on marriage and other forms of discrimination over the past 10 years,” Smith said. “It did that by establishing that our relationships are just as important and valuable as different-sex relationships and by saying that the government canā€™t use morality as a justification for interfering with individual choices about who to love and how. With those principles in place itā€™s very hard for anyone to come up with a legitimate and persuasive justification for discrimination based on sexual orientation.”

Similarly, Bonauto said “it’s not really easy” to compare the significance of the Goodridge case to the Perry and Windsor lawsuits, recalling the different cultural climate 10 years ago in which the Massachusetts case was argued.

“In 2003, these waters were largely uncharted,” Bonauto said. “There were zero marriage states,Ā aĀ civil unionĀ systemĀ in Vermont, and 36 states with discriminatory statutes and four states with amendments.Ā But then, as now, we were right; right on the constitutional principles and the utter absence of legal justifications for this discrimination.”

Those court rulings ā€” in particular the Goodridge decision because it was the first successful case for full marriage equality in the United States ā€” paved the way for 11 more states to approve same-sex marriage over the course of 10 years, including the legalization of marriage equality in Minnesota just this week.

Just as observers are parsing statements from justices now in an attempt to determine what the court may rule on Prop 8 and DOMA, followers of the court cases a decade ago were also trying to predict the future based on what was said during oral arguments.

In Lawrence, Smith said moderate justices at the time ā€” Associate Justice Anthony Kennedy and then-Associate Justice Sandra Day O’Connor ā€” were “uncharacteristically quiet,” making it difficult to predict how the court would rule.

“But we took hope from the fact that they didnā€™t say anything negative,” Smith added. “We were relatively optimistic that the court would strike down the sodomy laws once the court decided to take the case.”

For Goodridge, Bonauto said the wait was different from now in two regards: first because same-sex marriage wasn’t legalized anywhere in the country at the time, and second because there was no set timeline for when the Massachusetts Supreme Court had to make a decision.

“We thought and hoped we were right on the timing,” Bonauto said. “There were a lot of nerves and uncertainty while we waited. The fact that we didnā€™t know when the decision would come ā€” no clue at all ā€” added to the nerves and fueled the rumor factory. In the end, the decision turned out to be beautifully written and world-changing.”

In the present, many observers believe that the Supreme Court will issue a decision that will strike down DOMA on its merits ā€” either based on equal protection or federalism grounds ā€” although issues of standing were examined.

For Prop 8, much attention has been given to justices’ interest in the standing of Prop 8 proponents to defend the measure in court. A determination that they lack standing would leave in place a lower court ruling and likely invalidate the ban on same-sex marriage in California.

The standing issues before the Supreme Court, as Bonauto noted, also means the wait for Goodrige was different because the Massachusetts Supreme Court couldn’t rule on this basis.

“There were no outs,” Bonauto said. “They had to decide whether denying marriage to gay couples violates the Constitution of the Commonwealth or not. And I was asked very specifically in oral arguments about Vermont civil unions and a remedy that would provide those protections, and I said, ‘That was not what the plaintiffs were seeking; they were seeking access to marriage itself.'”

Notably, the oral arguments in Lawrence v. Texas took place on March 26, 2003, which is exactly 10 years to the day that oral arguments took place in the Prop 8 case on March 26, 2013. A ruling was issued in the Lawrence case on June 26, 2003 just as a ruling is expected in the Prop 8 and DOMA cases in June 2013.

In the Goodridge case, oral arguments took place before the Massachusetts Supreme Court on March 3, 2003, but a decision wasn’t rendered until Nov. 18, 2003.

Mary Bonauto, gay news, Washington Blade

Mary Bonauto (Washington Blade photo by Michael Key)

It remains to be seen whether the wording of rulings from the Supreme Court will have the same power as the language that justices handed down a decade ago. The 4-3 ruling in the Goodridge case affirmed that same-sex couples had the right to marry with never before seen language.

“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the decision states. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals.”

In the Lawrence case, the 6-3 opinion written by Associate Justice Anthony Kennedy determined that the framers intended language in the U.S. Constitution to be reinterpreted by later generations in accordance with their vision of liberty.

“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Also unknown is how the public might react if the Supreme Court issues affirmative rulings for marriage equality in the Prop 8 and DOMA cases.

In 2003, the court ruling in Massachusetts ā€” combined with then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay couples ā€” sparked a national backlash that led in the next year to 11 states passing constitutional amendments banning same-sex marriage. Former President George W. Bush ran a successful re-election campaign in which he advocated for passage of a Federal Marriage Amendment.

But Bonauto was skeptical that the legalization of same-sex marriage led to the passage of state constitutional amendments and Bush’s re-election ā€” saying the religious right wanted to enact the amendments anyway and analysis shows the marriage issue wasn’t as much a boon to Bush as it may seem on its face.

“By the time we had filed Goodridge, there were already 36 state statutes and four amendments,” Bonauto said. “So, for a lot of these states, they didn’t have anything else to do but to pass an amendment because they already had statutes barring marriage. Ā So I really view this as political opportunism both with elected officials and also the organized right-wing. It was trying to cut us off and change the facts on the ground, so that they could isolate this debate and isolate this issue in certain states.”

Given the growing acceptance of marriage equality ā€” one widely noted recent poll shows it enjoys support from 58 percent of the American public, compared to 30 percent support in 2003 ā€” the negative reaction to any pro-gay rulings will likely be more restrained.

In the event the Supreme Court in June renders similarly favorable decisions in support of rights for gay couples, Bonauto predicted some would speak out in opposition, but the reaction generally would be favorable.

“There are going to be people who are going to say things, and some of them have echo chambers and bully pulpits and their blogs,” Bonauto said. “I don’t think we should equate that to a backlash. I just think that is what public discourse is like in 2013. I really believe that the overwhelming majority of Americans are at a point where they accept and embrace the freedom to marry for same-sex couples.”

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Politics

HRC slams White House over position opposing gender affirming surgeries for minors

ā€˜Biden administration is flat wrong on thisā€™

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Human Rights Campaign President Kelley Robinson (Washington Blade photo by Michael Key)

Human Rights Campaign President Kelley Robinson issued a strong rebuke on Tuesday of the Biden-Harris administration’s position opposing gender affirming surgeries for minors.

The New York Times reported on June 28 that the White House, which broadly supports making medical interventions available for transgender youth, had expressed opposition to surgeries for patients under 18, having previously declined to take a specific position on the question.

ā€œHealth care decisions for young people belong between a patient, their family, and their health care provider. Trans youth are no exception,” Robinson responded. 

ā€œThe Biden administration is flat wrong on this. Itā€™s wrong on the science and wrong on the substance. Itā€™s also inconsistent with other steps the administration has taken to support transgender youth. The Biden administration, and every elected official, need to leave these decisions to families, doctors and patientsā€”where they belong,” she added. “Although transgender young people make up an extremely small percentage of youth in this country, the care they receive is based on decades of clinical research and is backed by every major medical association in the U.S. representing over 1.3 million doctors.”

Robinson said the “administration has committed to fight any ban on healthcare for transgender youth and must continue this without hesitationā€”the entire community is watching.” 

ā€œNo parent should ever be put in the position where they and their doctor agree on one course of action, supported by the overwhelming majority of medical experts, but the government forbids it,ā€ she added.

HRC is a prominent backer of Biden’s 2024 reelection campaign, having pledged $15 million to support efforts in six battleground states. The organization has a strong relationship with the White House, with the president and first lady headlining last year’s National Dinner.

A White House spokesperson declined to respond to Robinson’s statement.

Campaign for Southern Equality President Allison Scott also issued a statement.

ā€œThis is a cowardly statement from an administration that promised to support transgender people. It is a troubling concession to the right-wing assault on transgender Americans, falling for their false narratives about surgical care and betraying a commitment to equality and trust in the medical community,ā€ said Scott.

ā€œLetā€™s be very, very clear: Government has no business inserting itself into private medical decisions that should be exclusively between patients, their providers, and the patientsā€™ parent or guardian,” Scott added.

“It is dangerous to begin endorsing categorical bans or limits on healthcare, and there is no justification for restricting transgender youthā€™s access to the very same care that many cisgender youth receive every year ā€” thatā€™s literally the definition of discrimination,” Scott concluded. “We demand the Biden administration retract this thoughtless statement and work to undo its damage.ā€ 

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Congress

Members of Congress introduce resolution to condemn Uganda’s Anti-Homosexuality Act

U.S. Reps. Mark Takano (D-Calif.) and Joyce Beatty spearheaded condemnation

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U.S. Rep. Mark Takano (D-Calif.) (Washington Blade photo by Michael Key)

More than 20 members of Congress on Thursday introduced a resolution that condemns Uganda’s Anti-Homosexuality Act.

Gay California Congressman Mark Takano and U.S. Rep. Joyce Beatty (D-Ohio) spearheaded the resolution that U.S. Reps. Becca Balint (D-Vt.), Lloyd Doggett (D-Texas), Adriano Espaillat (D-N.Y.), Robert Garcia (D-Calif.), Sylvia Garcia (D-Texas), Josh Gottheimer (D-N.J.), RaĆŗl Grijalva (D-Ariz.), Pramila Jayapal (D-Wash.), Hank Johnson (D-Ga.), Gwen Moore (D-Wis.), Seth Moulton (D-Mass.), Jerry Nadler (D-N.Y.), Eleanor Holmes Norton (D-D.C.), Mark Pocan (D-Wash.), Delia Ramirez (D-Ill), Linda SĆ”nchez (D-Calif.), Jan Schakowsky (D-Ill.), Brad Sherman (D-Calif.), Rashida Tlaib (D-Mich.), Ritchie Torres (D-N.Y.), and Debbie Wasserman Schultz (D-Fla.) co-sponsored.

“The House of Representatives condemns the government of Ugandaā€™s criminalization and draconian punishments regarding consensual same-sex sexual conduct and so-called ā€˜’promotion of homosexuality,ā€™” reads the resolution.

The resolution, among other things, also calls upon the Ugandan government to repeal the law.

ā€œIt is difficult to overstate the gross inhumanity of Ugandaā€™s Anti-Homosexuality Act,ā€ said Takano in a press release.

President Yoweri Museveni in May 2023 signed the law, which contains a death penalty provision for ā€œaggravated homosexuality.ā€

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

The Ugandan Constitutional Court in April refused to ā€œnullify the Anti-Homosexuality Act in its totality.ā€ A group of Ugandan LGBTQ activists appealed the ruling.

ā€œInstead of focusing on rooting out corruption or ending extrajudicial killings, the Ugandan Parliament, president, and Constitutional Court have chosen to mark LGBTQ+ Ugandans as less than human,” said Takano. “Congress must not be silent in the face of such systematic, state-sponsored discrimination.”

“To all those LGBTQ+ people and your allies in Uganda ā€” we see you,” added the California Democrat. “We and the Biden administration will not allow this terrible violation of basic dignity to go unchallenged.ā€ 

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Politics

LGBTQ issues absent from Trump-Biden debate

Advocacy groups hoped candidates would address queer topics

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Former President Donald Trump and President Joe Biden debate on CNN on Jun 27, 2024. (Screen captures via CNN)

At their televised debate in Atlanta on June 27, President Joe Biden and former President Donald Trump traded barbs on issues from abortion and election integrity to immigration and foreign policy. The 81 and 78-year-old candidates even argued over who is a better golfer.

Absent from the discussion, however, were matters of LGBTQ rights that have animated national politics in this election cycle with the presumptive Republican nominee promising to weaponize the federal government against queer and trans Americans as the president pledges to build on his record of expanding their freedoms and protections.

CNN hosted Thursday’s debate, with the network’s anchors Dana Bash and Jake Tapper moderating. ABC News will run the second debate scheduled for September 10.

The president’s performance was widely criticized as halting and shaky, with White House reporter Peter Baker of The New York Times writing that Democratic Party leaders are calling for him to be replaced at the top of the ticket.

Also setting the tone early into the program was Trump’s repetition of the lie that Democrats are so “radical” on matters of abortion that they “will take the life of a child in the eighth month, the ninth month, and even after birth.”

Biden, meanwhile, laid the blame at his opponent’s feet for appointing three U.S. Supreme Court justices during his term in office who overturned Roe v. Wade’s 51-year-old constitutional protections for abortion.

He also referenced the fallout from that ruling and the extreme restrictions passed by conservative legislators in its wake, arguing that Trump would not veto a federal abortion ban if Republican majorities in Congress were to pass one.

Trump also repeated falsehoods about the 2020 presidential election.

“Will you pledge tonight that once all legal challenges have been exhausted, that you will accept the results of this election,” Bash asked him, “regardless of who wins, and you will say right now that political violence in any form is unacceptable?”

The Republican frontrunner first responded by denying he was responsible for his supporters’ violent ransacking of the U.S. Capitol Building on Jan. 6 2021.

After the CNN anchor pressed him twice to answer the first part of her question, Trump said, “if it’s a fair and legal and good election, absolutely” but “the fraud and everything else was ridiculous.”

“You appealed and appealed to courts all across the country,” Biden responded. “Not one single court in America said any of your claims had any merit, state or local, none. But you continue to provoke this lie about somehow, there’s all this misrepresentation, all this stealing ā€” there is no evidence of that at all.”

The president continued, “And I tell you what, I doubt whether you’ll accept it, because you’re such a whiner.”

Advocacy groups hoped the debate would address LGBTQ issues

Leading up to the debate, advocacy groups urged the candidates to defend their records on and policy proposals concerning LGBTQ rights, with some arguing the discussion would advantage President Joe Biden’s campaign, as reported by The Hill’s Brooke Migdon.

As the community celebrated Pride this month, the Biden-Harris 2024 team made significant investments in paid media and the Out for Biden national organizing effort to court LGBTQ voters, who are expected to comprise a larger share of the electorate than ever before.

ā€œThis will be an enormous slight to our community if LGBTQ questions are not asked during this debate,ā€ GLAAD President Sarah Kate Ellis said. ā€œOur community is deeply affected by where these candidates stand.ā€Ā 

ā€œThe safety and freedom of LGBTQ people depends on your engagement with the candidates and ability to inform voters about their records and proposals,ā€ she said.

Annise Parker, the outgoing president and CEO of the LGBTQ+ Victory Fund, said ā€œI certainly hope that the moderators bring up the LGBTQ community and LGBTQ issues, because there is a stark contrast between the two candidates.”

ā€œI hope we see a substantive conversation on the records of these two men for the fight for a more equal society,ā€ said Brandon Wolf, national press secretary at the Human Rights Campaign.

ā€œA vast majority of people in this country support an America that treats people with dignity and respect; they support an America that prevents people from experiencing discrimination and harm simply because of who they are,ā€ he said.

ā€œThat is where the American people largely are, and I hope we get an opportunity on that stage to see the contrast between these two candidates.ā€Ā 

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