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Supreme Court considers taking marriage cases

‘We are better people than what these laws represent’

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(Washington Blade file photo by Michael Key)

The United States Supreme Court is scheduled to discuss seven petitions from five different states today urging the Court to decide the constitutionality of state laws excluding same-sex couples from marriage on a nationwide basis. The Supreme Court has complete discretion over whether or not to take a case. And no one knows if the Court will decide whether to take any of the cases at this time or defer its decision until a future conference this fall. Indeed, the Court will have a lot to cover at its first conference with 53 petitions in other cases on its schedule as well. However, we could learn possibly as early as Tuesday whether the Court will take up the issue of the freedom to marry nationwide this term, with a substantive, definitive decision likely in June 2015.

The momentum toward marriage equality in the courts has accelerated at breakneck speed in the just over a year since the Supreme Court’s landmark decision in United States v. Windsor invalidated Section 3 of the misnamed “Defense of Marriage Act,” a statute that prohibited the federal government from recognizing the marriages of same-sex couples validly performed in states with marriage equality. Since Windsor, 27 federal courts have found state bans to be unconstitutional, with only one lower federal court upholding such a ban. Significantly, all four federal appellate decisions, from which the seven petitions to the Supreme Court come, favor equality. Judges ruling for the freedom to marry include appointees of Presidents Carter, Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama. Federal District Judge Richard Young of Indiana described in his ruling the winning streak as a phenomenon “never” before “witnessed … throughout the federal court system ….” Similarly, 13 state courts have ruled in favor of marriage equality, with only one opposed.

The petitions before the Supreme Court arise out of federal appeals court decisions striking down five states’ marriage bans: Indiana (7th Circuit), Oklahoma (10th Circuit), Utah (10th Circuit), Virginia (4th Circuit), and Wisconsin (7th Circuit). All of the cases present the issue of whether or not a state may prohibit same-sex couples from marrying. However, the cases differ as well, and the justices likely will be considering these differences in determining which case or cases to take. Attorneys for same-sex couples in each of the cases have argued the particular circumstances of their individual cases make them desirable for review.

One difference in the cases is that the Oklahoma case raises only the issue of whether a state may ban same-sex couples from marrying under its state laws, while the other states’ cases also involve challenges to whether a state must recognize the marriages of same-sex couples validly married in other states. If the Supreme Court were to strike down state marriage bans nationwide, the Court would not need to decide if and when one state must recognize marriages performed in other states. Alternatively, if the Court declined to decide the issue nationwide or upheld state marriage bans, the issue of recognition of out of state marriages could be very important.

The various states’ laws at issue in the petitions also differ. For instance, Wisconsin permits same-sex couples to enter into domestic partnerships, affording them limited legal rights, while the other states with petitions before the Court do not. The wording of the marriage bans and the history of the political campaigns to pass them vary from state to state. Procedural histories of the cases differ as well. For instance, in Virginia, the Attorney General, representing the state defendant agrees that the ban is unconstitutional, and local county clerks are defending the state ban. In the other states, the state has uniformly defended the bans. The attorneys in each case differ, too, and include lawyers from groups who have been advocating for LGBT equality for decades, such as the National Center for Lesbian Rights, Lambda Legal, Gay and Lesbian Advocates and Defenders, and the ALCU.

The legal bases for striking down the bans also differ between the various federal appellate decisions before the Court. The appellate courts in the Oklahoma, Utah, and Virginia cases invalidated those state bans on the grounds that that they violated same-sex couples’ “fundamental right to marry,” while the appellate court in the Indiana and Wisconsin cases struck down those states’ bans on the grounds that laws that discriminate on the basis of sexual orientation are entitled to elevated scrutiny under the Constitution. Windsor held that DOMA violated the Constitution’s guarantees of both liberty and equality. Both issues, and very possibly whether the bans constitute unlawful sex discrimination, will doubtlessly be argued before the Court regardless of which case or cases it takes. However, the Justices may consider the logic or rationale of one or more of the appellate court decisions particularly useful for review.

Two additional federal appellate circuits will likely weigh in this fall as well. The Sixth Circuit heard cases arising out of marriage bans in Kentucky, Michigan, Ohio, and Tennessee in early August, and the Ninth Circuit heard cases from Idaho and Nevada in early September. From relevant circuit court precedent and the questions and comments the judges made at oral argument, most observers believe the Ninth Circuit will very likely rule in favor of equality, but the outcome of the Sixth Circuit cases is much harder to predict.

In remarks last week at the University of Minnesota, Justice Ruth Bader Ginsburg fueled speculation that the Court might wait to determine whether or not to take a case until the Sixth Circuit rules. She stated that there would be “no need for [the Supreme Court] to rush” if the Sixth Circuit ruled in favor of the freedom to marry, as all the other circuits who have addressed the issue since Windsor have. However, she said that a Sixth Circuit ruling against equality would create “some urgency” for the Court to step in. The Supreme Court often takes cases to resolve disputes among the circuits.

Further, the Supreme Court will take a case if four of the nine justices vote to hear it. The Supreme Court has stayed decisions in the Fourth, Seventh, and Tenth Circuits from taking effect until final resolution of the cases. If the Sixth and Ninth Circuits were also to rule in favor of equality, most observers believe it unlikely that the four justices who dissented in Windsor would simply let all the petitions be dismissed by voting to deny review — effectively permitting marriage equality in 20 additional states located in those circuits. But if the Supreme Court held the petitions until a circuit court ruled against the freedom to marry, many thousands of LGBT Americans could have to wait even longer for a decision. Regardless of how the Sixth Circuit rules, the issue of marriage equality is, in fact, “urgent,” for LGBT Americans, many of whom have been together for decades without legal recognition and protection.

Many of us would love to be a proverbial “fly on the wall” at the justices’ conference chamber, but we will of course have to wait until the Court makes public its decisions from the conference either later this week or on Oct. 6, the official beginning of the new term. Federal District Judge John E. Jones III, a George W. Bush appointee, wrote in his opinion, invalidating Pennsylvania’s marriage ban: “We are better people than what these laws represent, and it is time to discard them into the ash heap of history.” That time cannot come too soon.

John Lewis is legal and policy director for Marriage Equality USA.

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Opinions

A confused Biden and a deranged Trump

Sad state of affairs after first presidential debate

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

Joe Biden was clearly ready with some facts for this debate, the sad part is he couldn’t articulate them. He sounded raspy, and lost track of what he was saying in the first few minutes of the debate. He did get better as the debate progressed but came off sounding and looking like an old man. For those of us hoping he would sound like he did at the State of the Union, or the speech he gave on anti-Semitism, it was a huge disappointment. 

So, where his campaign goes from here is anyone’s guess. Behind the scenes some Democrats are calling for him to step down as the candidate. But that is much more difficult than it seems at this time. And then, will there be a fight for who the candidate will be. Will it automatically be Kamala Harris, or will it be someone else?  So many unanswered questions over the next couple of weeks.

The only positive take-away for Democrats from the debate was how deranged Donald Trump sounded. He refused to deal with any issue, refused to say he would accept the results of this election, refused to acknowledge climate change, or Jan. 6, and kept saying how the states should control the issue of abortion, and women’s health. Every one of these things should be frightening to so many people. It is clear if Trump is elected, we will have a dictator in the White House, who believes Hitler did good things. His election is scary for women, young people, Black Americans, and the LGBTQ community. If states control issues related to any of these groups, they are screwed. 

One of the very few good lines Biden got across was when he said 40 high-level Trump appointees, members of the Cabinet, and his vice president, have refused to endorse him as they know him best. People need to take their word for how bad he will be should he be reelected. Trump kept talking nonsense and it was hard to keep up with the lies. The moderators didn’t call him on any of it, but CNN has said before the debate they wouldn’t. But then Biden missed so many chances to call him on the garbage he was spouting. I kept hoping he would turn to him and say clearly, “You can’t believe all the BS you are spouting. You sound like a deranged six-year-old and someone who would take our country down the tubes.”

Now I accept the fact Biden speaks more slowly and softly. Though after the debate they said he had a cold. He could have said that at the beginning of the debate, if it was true, and explained his voice to the audience. And while we know he has a stutter, it seemed so much worse during the debate than it normally does. Was it nerves, maybe, but difficult nonetheless for him, and for those listening. We must have compassion for anyone with any kind of a disability. Then one had to ask, was he over-prepared for this debate? Was he so scripted he didn’t dare say anything off script. When he did, they got into this thing about golf handicaps and both sounded so childish. 

Biden did manage to talk about the things he has done, and the successes of his first administration. There have been many. First bringing the country successfully out of the pandemic. He spoke about unemployment being the lowest it has been in decades, and the more than 15 million jobs created since he took office. He was honest about inflation and the fact that not all the economic successes the country is having are trickling down to every American. He understands that rents are high, and grocery bills are still too high. He made clear he wants to raise taxes on the rich and Trump wants to lower them. He had a plan to ensure Social Security would stay solvent, Trump had nothing as usual. 

Finally, I was surprised that in his two-minute closing, Biden didn’t go back to the issues of abortion, climate change, and saving democracy. Did his debate prep team tell him not to? If so, they were wrong. Whether it remains Joe Biden on the ticket, or is someone else, I am 1,000% committed to do everything I can to see Democrats are elected across the board. It is clear to me, and should be to all decent people, electing Donald Trump and his MAGA Republicans, will be the end of our country as we know it today. 

Peter Rosenstein is a longtime LGBTQ rights and Democratic Party activist. He writes regularly for the Blade.

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Opinions

As fewer anti-LGBTQ bills pass, the fight gets harder

A growing indifference to suffering that is baked into the legal system

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(Photo by Proxima Studio/Bigstock)

In recent years, advocates have faced an unprecedented avalanche of anti-LGBTQ legislation each spring. In 2024, however, the onslaught seems to have faltered somewhat. While hundreds of anti-LGBTQ bills were once again introduced, as many state legislative sessions draw to a close, fewer bills have been enacted into law.

While that may seem like cause for celebration, it’s also cause for concern.

To be sure, the slowdown in anti-LGBTQ legislation is welcome. Beginning in 2020, legislation targeting transgender rights in particular had sailed through state legislatures, with the number and scope of hostile bills increasing each year. Unlike earlier years when one or two prominent anti-LGBTQ bills triggered a national pushback that often chastened lawmakers, hundreds of bills have been introduced during legislative sessions in the last four years, often with little debate or scrutiny, and dozens of them zealously passed into law.

Those bills do real damage when they are enacted, cutting LGBTQ people off from material benefits like health care and domestic violence sheltersrecognition by the state, and equal participation in public life. Even when they fail to become law, they have devastating effects on the mental health of LGBTQ people, throwing their lives into disarray and sapping valuable time and energy from LGBTQ communities. This especially affects children, with more than 90 percent of LGBTQ young people in a recent Trevor Project survey reporting that politics had negatively affected their personal well-being.

But the recent slowdown, far from being a positive signal, may well reflect a growing indifference to the suffering of LGBTQ people that is now baked into the political and legal system. Opponents of LGBTQ rights have normalized hostile rhetoric and enacted draconian laws that seemed unthinkable just a couple of years ago, and even ardent supporters of equality find themselves unsure how they might reverse state laws that unapologetically strip away LGBTQ rights.

If anything, it has become apparent that the damage that has been done since 2020 will most likely reverberate for a generation, and the past year shows that restoring and advancing LGBTQ rights will be a painstaking endeavor.

And one sobering reason for the slowing pace of anti-LGBTQ legislation is that, at this point, many conservative states have already stripped away important rights, particularly for transgender children. As of 2024, half of the states in the U.S. prohibit transgender girls from playing school sports, and half have banned or criminalized at least some forms of medically indicated healthcare.

Put differently, lawmakers aren’t targeting some rights this year because they’ve already eviscerated them.

Yet even as the pace of legislation slows, critical rights continue to be stripped away. According to the ACLU, more than 30 anti-LGBTQ bills have been enacted in 2024 — fewer than the 84 enacted in 2023, but still far too many. Among them, Utah and Mississippi restricted transgender people from accessing bathrooms and locker rooms in public schools and other government buildings.

Lawmakers in Ohio overrode the governor’s veto to ban transgender children from receiving gender-affirming care or playing sports consistent with their gender identity. South Carolina and Wyoming similarly enacted blanket bans preventing transgender children from accessing gender-affirming care.

Many of the bills that have been introduced this year sought to expand existing anti-LGBTQ legislation in new ways. Alabama, for example, successfully expanded its bathroom ban from K-12 schools to colleges and universities. Even those that didn’t pass are in many cases likely to be reintroduced after the 2024 election, particularly if anti-LGBTQ lawmakers increase their showing in state legislatures or if governors who are supportive of LGBTQ rights are no longer positioned to veto hostile legislation.

In many states with anti-LGBTQ legislation, administrative and regulatory agencies are being used to curtail LGBTQ rights even further. Florida offers an instructive example. Even after years of anti-LGBTQ legislation, the Florida Department of Highway Safety and Motor Vehicles took things a step further within its mandate, and decided in 2024 that transgender people could no longer update the gender marker on their driver’s licenses. This echoes recent regulatory crackdowns elsewhere in the United States, from the Texas Department of Family and Protective Services investigating parental support for transgender children as child abuse to school boards across the country stripping away lifesaving resources in schools.

And while many believed that courts would provide a bulwark against discriminatory legislation and regulations, in part because of strong Supreme Court precedent to suggest that anti-transgender discrimination is a form of sex discrimination, that has not consistently been the case. Trial courts have largely found in favor of transgender litigants, criticizing the insufficient justification and discriminatory purpose of anti-transgender laws, but some appellate courts have nevertheless allowed the laws to take effect.

Perhaps most alarming, there are advocates and lawmakers who, if in a position to do so, are eager to carry out an even harsher attack on LGBTQ rights. Project 2025, which a group of conservative organizations has drafted as a roadmap for a second Trump administration, promises an even more draconian attack on LGBTQ rights. This would include rolling back existing nondiscrimination protections for LGBTQ people, reinstating the transgender military ban, and codifying state restrictions on transgender rights at the federal level, in addition to limiting recognition of same-sex relationships.

The anti-LGBTQ backlash may be waning in certain respects — but in other ways, it has only just begun. As we celebrate Pride, LGBTQ people and their allies should be mindful of the need to support those communities whose rights are being eroded, invest in transgender rights organizing, demand that lawmakers prioritize LGBTQ rights, and fight for the independent institutions and protections for basic freedoms that are essential to hold power to account.

Ryan Thoreson is a specialist on LGBTQ rights at Human Rights Watch and teaches at the University of Cincinnati College of Law.

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Commentary

LGBTQ people deserve freedom, a sense of home, and belonging

Latoya Nugent found refuge in Canada after fleeing Jamaica

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Latoya Nugent, center, at the March for LGBTQ+ Rights in Toronto on May 16, 2024. (Photo courtesy of Rainbow Railroad)

Seven years ago, my fight for queer liberation in notoriously homophobic Jamaica culminated in a violent and brutal unlawful arrest and detention. This was the peak of decades of persecution due to my sexual orientation and work as a queer human rights defender and activist. It completely broke me and silenced me. I suffered severe emotional trauma, from which I am still recovering years later. 

Following that life-threatening arrest, I became a shell of who I once was. I cut off communication with my community for several years, unable to face my fear of the police and the hostility of the world around me. 

In 2022, I was one of the 9,591 at-risk LGBTQI+ people who reached out to Rainbow Railroad for help. Through the organization’s Emergency Travel Support (ETS) program, which relocates at-risk LGBTQI+ people and helps them make asylum claims in countries like the U.S., I resettled in Canada where I’ve been living safely with dignity and pride. 

This Pride Month, I’m reflecting on what it means to be safe. Who has access to safety and why others are excluded from it. What is our collective role and responsibility in expanding safety for our queer and trans communities, especially those in the over 60 countries that criminalize LGBTQI+ people? 

Safety means different things to different people depending on our experiences and journeys. For me, it’s the difference between suffering and thriving, feeling worthless and worthy, and feeling hopeless and hopeful. It is the difference between displacement and belonging. 

Rainbow Railroad recently released a report that examines the state of global LGBTQI+ persecution, drawing on data from 15,352 help requests spanning 100+ countries. This report is significant for several reasons, chief among them is the reality that no other organization or government captures the breadth and depth of data on LGBTQI+ forced displacement, perpetuating the invisibility of queer individuals in humanitarian responses. The report is an important contribution to the discourse on the intersection of queer identity, LGBTQI+ persecution, forced displacement, and humanitarian protection systems. 

Of all the data and insights uncovered in the report, I was most struck by one statistic — 91 percent of at-risk LGBTQI+ individuals relocated through the ETS program reported an improved sense of personal safety. This statistic is particularly personal to me because ETS was the only relocation option accessible to me in 2022 when I reached out to Rainbow Railroad for help. 

I am in that 91 percent because I am now thriving. I feel worthy. I am hopeful about life. And I belong. 

Today, among the 120 million forcibly displaced people around the world, queer and trans individuals face compounded complications from homophobia and transphobia while trying to access protection and safety. And while the anti-gender movement continues to swell in some states, I firmly believe that the U.S. remains a global leader in refugee resettlement — which is why the U.S. government must uphold its international obligations and reverse its recent executive order that imposes severe restrictions on the right to seek asylum. 

Queer and trans individuals deserve freedom, a sense of home, and belonging — realities that flourish only when rooted in the bedrock of safety. 

There is a lot more work to be done. It’s challenging. It’s complex. It’s costly. But I have experienced firsthand what the transformative impact of Rainbow Railroad’s work has on someone’s life — that ability to lift people out of danger into safety is something worth celebrating this Pride. 

Latoya Nugent is the head of engagement for Rainbow Railroad.

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