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The path to winning marriage in 50 states in five years

One expert says HRC’s goal ‘completely unrealistic’

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Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade
Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

Following the Supreme Court rulings, advocates are making plans to achieve marriage equality throughout the country. (Washington Blade photo by Michael Key).

Amid celebration over the Supreme Court rulings against the Defense of Marriage Act and California’s Proposition 8, plans are already in place to extend the victories further as the Human Rights Campaign has pledged to win marriage equality in all 50 states within five years.

Following the announcement of that goal, which was made by HRC President Chad Griffin on the steps of the Supreme Court immediately after the decisions, state advocates as well as other national groups are engaged in plans to bring marriage equality to the 37 states where gay couples are still unable to wed.

Speaking with the Washington Blade at the court after he made the pledge, Griffin said achieving that goal would involve a combination of several routes, including additional litigation.

“It will take legislative work, it will take ballot work, it will take Congress and it will ultimately take the federal courts again to bring full equality to every single corner of this country,” Griffin said. “But there is no ground we will leave unturned. Today we will fight aggressively on all fronts in all states.”

Griffin said he’s basing the timeline for his plan on the length of time it took to overturn Prop 8, which took five years from the time Prop 8 passed at the ballot in 2008.

There are already new lawsuits in the works in the wake of the rulings that struck down DOMA, the anti-gay law prohibiting federal recognition of same-sex marriage, and Prop 8. Although many hoped the latter case would be the one to bring marriage equality to all 50 states, the ruling instead that came down was limited in scope to California.

Jon Davidson, legal director of Lambda Legal, told the Blade his group is planning new lawsuits to advance marriage equality, but isn’t yet ready to talk details.

“We do have plans to file additional marriage cases in federal court, and are preparing those now,” Davidson said. “We are not in a position to share which states at the moment.”

Appearing on CNN on Sunday, David Boies, one half of the legal dream team hired by the American Foundation for Equal Rights that successfully led the lawsuit against Prop 8, said, “there isn’t any state we’re giving up on” and suggested new litigation is coming.

“Our goal is to have marriage equality that’s guaranteed by the U.S. Constitution, enforced in every single state in the union,” Boies said.

But Davidson also cautioned gay couples against filing additional lawsuits because of the time and cost involved as well as whether the litigation is strategically appropriate.

“The Perry case, for example, cost each side several million dollars to litigate,” Davidson said. “Often, numerous expert witnesses are required. And, if brought in the wrong place, at the wrong time or without adequate preparation, suits can set back our community’s progress by creating bad precedent that could create barriers to equality nationwide.”

Some are skeptical about HRC’s timetable. Among them is Larry Sabato, a political scientist at the University of Virginia, who said meeting that goal is “completely unrealistic.”

“I cannot imagine same-sex marriage passing in my lifetime (plus a couple decades or more) in many southern and border states, plus some of the Rocky Mountain and Midwest states,” Sabato said. “Any state with a decent-sized GOP majority in at least one state legislative house will be enough to kill the effort. Only a handful of states have the citizen-sponsored ballot initiative option.”

Sabato said another lawsuit akin to the 1967 case of Loving v. Virginia would be the best route to achieve nationwide marriage equality — but seeing that come to fruition in five years is doubtful.

“That is a completely unrealistic schedule, given the obstacles in the states,” Sabato said. “And I doubt the Supreme Court will take up another major marriage case that quickly.”

Meanwhile, several lawsuits are already pending that have the potential to not only extend marriage equality in certain states, but advance to the Supreme Court for an ultimate resolution extending same-sex marriage nationwide.

The most high-profile among them is the challenge to Nevada’s constitutional ban on same-sex marriage, Sevcik v. Sandova, which was filed by Lambda Legal and is pending before the U.S. Ninth Circuit Court of Appeals. That case is on a parallel track with Jackson v. Abercombie, a challenge to Hawaii’s ban on same-sex marriage that was filed by private attorneys.

Judges placed a stay on the cases as the more advanced DOMA and Prop 8 cases were proceeding through the judiciary, but that stay is slated to expire on July 18.

Davidson had an ambitious outlook for the timeline for the Nevada case and said it’s teed up to potentially be the next to reach the Supreme Court.

“We will be filing our appellate brief with the Ninth Circuit in September,” Davidson said. “We expect to argue the case to that appellate court sometime in 2014 and possibly have that case in front of the Supreme Court in 2015.”

Also, as Buzzfeed reported, a U.S. district court in Michigan ruled on Monday to let a federal challenge to the state constitutional ban on same-sex marriage proceed in the wake of the Supreme Court’s decision against DOMA. That challenge will be interesting to watch because the Sixth Circuit has a reputation for being a conservative court.

Eyes on legislation in Illinois, New Jersey

But the best prospects for advancing marriage equality remain in the legislative arena as advocates in two states — Illinois and New Jersey — work to muster enough votes to pass bills that would legalize gay nuptials.

In Illinois, supporters of same-sex marriage are hoping the extension of the legislative session to Aug. 31 will permit them enough time to build support after gay State Rep. Greg Harris didn’t bring the bill to a vote because he didn’t think the measure had enough support.

Bernard Cherkasov, CEO of Equality Illinois, told the Blade he’s hoping the extension of the House session willĀ provide enough time for a successful vote on the bill sometime this fall.

“The bill hasĀ been granted an extension in the House throughĀ Aug. 31, with theĀ possibility of further extensions, if needed,” Cherkasov said.Ā “We hope that the billĀ will pass the full House vote during the ‘veto session’ which isĀ scheduled to take place this fall.”

In New Jersey, lawmakers are working to build support to override Republican Gov. Chris Christie’s veto of marriage equality legislation in the wake of his comments calling the Supreme Court’s decision against DOMA “incredibly insulting” and “another example of judicial supremacy.”

Calling Christie’s remarks “insulting,” State Sen. Barbara Buono, the Democratic gubernatorial candidate challenging Christie in the upcoming election, told the Washington Blade on Friday she thinks the override is just a few votes short in the Senate.

“This governor has to release the Republicans in the Senate and the Assembly,” Buono said. “I think that we could easily get an override if he would release them. These are people who live in fear of retribution and retaliation of this governor. If the governor would release them, we would have an override easily in the Senate; all we need are three votes.”

But should the override be unsuccessful, Buono said she’ll make marriage equality in New Jersey a campaign issue and pledge to make a marriage equality bill the first one that she signs if elected.

In both Illinois and New Jersey, litigation is pending before state courts to advance marriage equality should legislative efforts fail. Another Lambda lawsuit, Darby v. Orr, is pending before the Circuit Court of Cook County. In New Jersey, Lambda is expected to file on WednesdayĀ a motion for summary judgment in its state case, Garden State Equality v. Dow, which also includes a federal equal protection claim.

Yet another lawsuit in New Mexico state court pursuing marriage equality was filed by the American Civil Liberties Union and the National Center for Lesbian Rights.

The case, whichĀ  is pending before Albuquerque’s district court, was filed after city officials in Santa Fe issued guidance saying the state already has marriage equality because the statute governing marriage in the state is gender neutral. In response, New Mexico Attorney General Gary King said the statute is “vulnerable to challenge.”

Oregon activists seek 2014 ballot initiative

Ballot initiatives are also expected to advance marriage equality in more states as the nation prepares for mid-term elections. The foremost among those is the planned ballot initiative in Oregon to win marriage equality in the state in 2014.

Peter Zuckerman, media manager for Basic Rights Oregon, said the official date to start the necessary 116,284 signatures to place the initiative on the ballot is happening later this month.

“On July 20 we launch the campaign to collect the 116,284 signatures, which is the next step to qualify for the ballot,” Zuckerman said. “If all goes as planned, Oregonians will vote for the freedom to marry in November 2014.”

If Oregon LGBT activists win at the ballot, their efforts would institute marriage equality by reversing a state constitutional amendment that Oregon voters approved in 2004.

Meanwhile, in Nevada, the state assembly in May approved an amendment that would undo the state’s constitutional ban on same-sex marriage. The process to ratify amendments in the state requires the measure to pass in two consecutive state legislatures and at the ballot during the next election.

To assist in repealing these bans and other barriers to marriage equality, the ACLU announced last week it hired Republican strategist Steve Schmidt, a supporter of marriage equality who signed the friend-of-the-court brief against Prop 8, and former GOProud executive director Jimmy LaSalvia as part of a nationwide campaign. The ACLU has pledged to spend $10 million through 2016 as part of this effort.

LaSalvia told the BladeĀ many statesĀ are conservative leaning, which will require supporters of marriage equality to undertake an extra effort to work with conservatives to achieve success.

“Conservatives know that marriage is a good thing, and we should encourage, protect, and promote it for everyone Ā including gay people,” LaSalvia said. “I am looking forward to working with the ACLU to make that case, state by state, to build consensus through the political process to legalize civil marriage for gay couples.”

Plans in other states are also underway to extend marriage equality in the wake of the Supreme Court decisions last week.

• Arizona — The new group Equal Marriage Arizona is seeking to collect 400,000 signatures to place an amendment on the 2014 ballot reversing the constitutional ban on same-sex marriage that voters put in place in 2008.

• Pennsylvania — Last week, gay State Rep. Brian Sims announced that he plans to introduce legislation that would institute marriage equality and has begun to seek additional co-sponsors for the measure. Passing the bill will be difficult because Republicans control the governor’s mansion and the Senate in Pennsylvania.

• Colorado — In the state where Gov. John Hickenlooper (D) recently signed into law a measure to legalize civil unions, efforts are underway to extend full marriage equality. Colorado House Speaker Mark Ferrandino, who’s gay, said statewide LGBT rights groups are building a coalition to repeal the ban on same-sex marriage and expecting a ballot initiative before the end of the decade.

• Ohio — National LGBT groups and local activists held a meeting last month to discuss bringing an initiative to the ballot to reverse the state’s constitutional ban on same-sex marriage. One group, Freedom Ohio, said the plan is to take the initiative to the ballot in 2014, although the groups insisted a firm date hasn’t yet been set.

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Congress

House Republicans advance two anti-trans education bills

Congresswoman Jahana Hayes, LGBTQ groups slammed the effort

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U.S. Rep. Tim Walberg (R-Mich.) chair of the House Education and Workforce Committee (Photo public domain)

Republicans members of the House Education and Workforce Committee advanced two anti-transgender bills on Wednesday, one that would forcibly out students in public elementary and middle schools to their parents and a second covering grades K-12 that critics have dubbed a “don’t say trans” bill.

More specifically, under the PROTECT Kids Act, changes to “a minor’s gender markers, pronouns, or preferred name on any school form or sex-based accommodations, including locker rooms or bathrooms” could not be made without parental consent, while the Say No to Indoctrination Act would prohibit schools from teaching or advancing “gender ideology” as defined by President Donald Trump’s anti-trans Jan. 20 executive order, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.

U.S. Rep. Jahana Hayes (D-Conn.), who was named national teacher of the year before her election to Congress, rose to speak out against the bills during the committee’s convening on Wednesday.

“Curriculum does not include teaching students to be something else. Curriculum does not include indoctrinating students to identify as gay or LGBTQ or other or anything. But federal law mandates that all students have civil rights protections,” she said.

The congresswoman continued, “I don’t really understand what the members of this committee think happens in schools, but my question is, what do we do with these children? The children who you are saying, on this committee, don’t exist, the children who are struggling with their identity and often times confide in their teachers and ask for support and help.”

“What we’re doing in this committee is focusing on a small population of students who are at a point in their life where they are struggling and school may, for many of them, feel like the only safe place or the only place where they can get support, or the only place where they can speak to a counselor,” Hayes said.

“And as a teacher, I don’t care if it was just one student that I had to reassure that they were important and they were valued and they belonged here,” she said. “I’m going to do it, and anyone who has dedicated their life to this profession will do the same. So the idea that you all feel okay with arbitrarily erasing, disappearing people, making them think that they they don’t exist, or they don’t have a place in schools, or the curriculum should not include them, or whatever they’re feeling should not be valued, considered, Incorporated, is just wrong.”

“So I will not be supporting this piece of legislation, as if that was not already evident, and I will be using all of my time, my agency, my energy, my advocacy, to ensure that every student,” Hayes said, “feels valued, respected, important and included in the work that I engage in on this committee.”

The congresswoman concluded, “when you are in a classroom and you are a teacher, and that door closes and a student falls in your arms and says to you, I am struggling, and I can’t go home with this information, and I need Help, you have a moral responsibility to help that child or you are in the wrong profession. I yield back.”

The Congressional Equality Caucus slammed the bills in an emailed statement from the chair, U.S. Rep. Mark Takano (D-Calif.), who noted that the legislation comes as “Donald Trump is illegally trying to dismantle the Department of Education and pass tax cuts for billionaires.”

“Extreme Republicans in Congress are trying to distract Americans by advancing cruel, anti-trans legislation,ā€ said the congressman, who is gay. ā€œSchool districts, teachers, and staff best understand how to draft age-appropriate, inclusive curriculums and craft policies that both respect the important role parents play in children’s education and the importance of students’ safety.”

“Yet, Republicans’ Don’t Say Trans Act would cut critical funding for schools if their teachers teach lessons or include materials that simply acknowledge the reality of trans peoples’ existence,” Takano added. “Republicans’ forced outing bill would put kids in danger by requiring schools that want to take certain steps to affirm a transgender student’s identity to forcibly out them to their parents — even if the school knows this will put the student’s safety at risk.”

The caucus also slammed the bills in a series of posts on X.

The Human Rights Campaign also issued a statement on Wednesday by the organization’s communications director, Laurel Powell:

ā€œInstead of putting our dangerous President in check and tackling the American economy’s free fall, House Republicans showed where their priorities lie — giving airtime to junk science and trying to pass more anti-LGBTQ+ legislation.

“Forcing teachers to ā€˜out’ trans youth rather than supporting them in coming out to their families and demanding that schools ignore the trans students who sit in their classrooms is a craven attempt to distract people from economic disaster by vilifying children.

“Even as they fire people whose jobs were to make sure schools have the resources they need, the Trump administration and their allies in Congress continue to attack vulnerable young people to score points with the far right.ā€

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Politics

Trump’s battle with Maine over trans policies escalates

State has filed a lawsuit, federal government has cut funding and launched investigations

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President Donald Trump (Washington Balde photo by Michael Key)

A months-long standoff between between President Donald Trump and Maine Gov. Janet Mills (D) continued to escalate this week with a lawsuit targeting the administration on Monday and cuts to federal grants to the state on Tuesday.

The conflict kicked off on Feb. 21 at the White House, where the president threatened Mills with retaliation after she declined to say that her state would not comply with his executive order barring transgender athletes from competing in school sports. The governor and other officials have said the policy is in conflict with provisions of the Maine Human Rights Act, while the president argued his executive action supersedes state law.

While the heated exchange between the two concluded with each party vowing to see the other in court, developments in the time since suggest that Trump and Mills are likely to square off over legal questions far broader than whether the White House can prohibit trans girls in a blue state from joining the field hockey team.

In a complaint filed on Monday, Maine Attorney General Aaron Frey argued U.S. Department of Agriculture Secretary Brooke Rollins had unlawfully frozen funding for “certain administrative and technological functions” in schools in his state after concluding, in the absence of a formal investigation, that some of their programs violated Title IX rules. A letter last week from Rollins notifying Mills of the USDA’s decision warned that it was “only the beginning.”

Then on Tuesday, the Maine Department of Corrections said the Justice Department had cancelled several grants, which according to the Maine Morning Star would have supported “drug treatment for adults in reentry, programs that foster engagement between incarcerated parents and their children, and resources for corrections agencies to improve post-release supervision in order to prevent recidivism and reduce crime.” U.S. Attorney General Pam Bondi said during an interview that the move came in response to the state’s incarceration of a transwoman in a women’s prison.

One of Trump’s day-one executive actions targeting trans rights included a provision directing the AG and the Homeland Security secretary to ensure that women’s prisons and detention centers do not detain or house “males” or trans women, though here and elsewhere the administration deliberately does not make the distinction — and in Section 2 of the order, establishes that the policy of the federal government will be to treat gender as a binary that is fixed at birth, a narrow definition that denies the biological reality that people can be intersex (meaning their sex characteristics cannot be clearly distinguished as male or female) while others, like trans individuals, may experience incongruity between their gender and birth sex.

Leading up to this week, other major developments following the Feb. 21 White House confrontation between Trump and Maine’s Democratic governor include:

  • A probe in late March by the U.S. Department of Education into whether policies in Maine schools that protect the privacy of students by prohibiting disclosures to parents about the sexual orientation or gender identity of their kids may violate federal law,
  • Trump’s demand for an apology from Mills on her refusal to do so, both in late March,
  • DOE’s determination in late March that schools in the state were violating Title IX by allowing trans women and girls to compete in sports, which came after the Trump administration reversed that portion of the Title IX guidance issued under former President Joe Biden,
  • An announcement in mid-March by the the U.S. Department of Health and Human Services Office for Civil Rights that the Maine Principals’ Association and Greely High School violated Title IX by allowing trans athletes to compete in sports,
  • The USDA’s decision in early March to hold up funding for universities in the University of Maine system pending the conclusion of the agency’s probe into possible violations of Title IX and Title VI, which was subsequently reinstated after a couple of weeks,
  • The National Oceanic and Atmospheric Administration’s withdrawal of funding in early March for the University of Maine’s Maine Sea Grant program, which was followed less than a week later with the U.S. Department of Commerce ‘s announcement that it would be renegotiated, and
  • HHS’s determination in late February that the Maine Department of Education violated Title IX, a conclusion reached just four days after an investigation was opened and without any interviews, data requests or negotiations.
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Congress

Chris Pappas launches Senate bid in N.H.

Video references ‘political extremists who want to take rights away’

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U.S. Rep. Chris Pappas (D-N.H.) (Washington Blade photo by Michael Key)

Gay U.S. Rep. Chris Pappas (D-N.H.) launched his bid for the seat held by retiring U.S. Sen. Jeanne Shaheen (D-N.H.) with a video posted to X Thursday morning and kickoff event planned for the evening in his hometown of Manchester, N.H.

ā€œI’m running for Senate because our economy, our democracy, and our way of life are on the line, and New Hampshire deserves a senator who is grounded in the people, places, and values of this state,ā€Ā he said in a press release.Ā ā€œGranite Staters know my record of taking on the big fights and looking out for them — pushing tax cuts for working families and small businesses, taking on predatory companies and corporate polluters, and standing up to Big Pharma to lower drug costs.”

Pappas’s statement continued, “Like Sen. Shaheen, I’ll always put New Hampshire first. You can count on me to lead the charge to confront this administration, self-dealing billionaires, and extreme politicians who threaten our future and our ability to get things done for New Hampshire.ā€

In his video, the fourth-term congressman pledged to rein in the power of big corporations, and he addressed “veterans, parents, small business owners,” and the “people who have done everything right” but are “asking ‘why does it feel like the system is rigged?'”

Referencing concerns with the Republican administration and GOP majorities in Congress, he said, “You think about the social security office that’s gonna be closed in Littleton, drastic cuts to Medicaid, all in the name of giving big tax breaks to billionaires like Elon Musk.”

Pappas also seemed to allude to anti-LGBTQ moves by the White House and congressional Republicans, promising to stand up to “political extremists who want to take rights away.” The ad wrapped with a shot of the congressman with his husband Vann Bentley. “We will get our country back on track. Stronger, fairer, freer, working for everyone.”

Freshman U.S. Rep. Maggie Goodlander (D-N.H.) is also considering a run for Shaheen’s seat while former U.S. Sen. Scott Brown (R-Mass.) and former New Hampshire Gov. Chris Sununu are mulling campaigns.

Pappas was endorsed by the LGBTQ Victory Fund, whose newly seated CEO Evan Low released a statement:

ā€œRep. Chris Pappas has a long and storied history of serving New Hampshire, and LGBTQ+ Victory Fund has been right by his side since he ran for state office 23 years ago. He has a track record of taking on big fights for his constituents and has proven that he can win tough races, outperform expectations, and flip key Granite State seats. Whether its strengthening the economy, protecting bodily autonomy or taking on price gougers, Chris will continue to be an important voice that looks out for the people of New Hampshire.

ā€œWe need Chris’s pro-equality voice in the Senate, where right now we only have one LGBTQ+ member. He will be a strong fighter against anti-equality forces in the current administration and extreme politicians looking to erase our rights and existence.

ā€œHis presence in the Senate will be critical to retake the majority and ensure that Granite State voters won’t get a raw deal. Chris deeply understands New Hampshire, and his record shows that he is laser-focused on getting things done. We are thrilled to endorse Chris Pappas for a history-making place as the first out LGBTQ+ man to serve in the Senate.ā€

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