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Obama has leeway in defense of DOMA: activists

GLAD says Justice has made some accomodations, but can go further

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The heads of LGBT legal organizationsĀ say that the Obama administration has considerable leeway in how it defends the Defense of Marriage Act in court — even if officials believe they’re obligated to uphold the statute.

The Obama administration’sĀ defense of DOMA, which prohibits the federal recognition of same-sex marriage, has inspired debate among LGBT rights supporters about whether the Justice Department is required to defend the law.

The LGBT advocates commented on the issue during an eQualityThinking panel on MondayĀ in response to a question from moderator and Washington Blade editor Kevin Naff.

Kevin Cathcart, executive director of Lambda Legal, said he’s “not completely convinced” the Justice Department is compelled to defend DOMA,Ā but saidĀ even itĀ is, the administration doesn’t need to use every argument to defend the statute.

“They have great leeway in deciding what arguments they will make and what arguments they won’t make,” Cathcart said. “I don’t accept the notion that if they have to defend, it means they have to throw in arguments that have been discredited and argue issues that should never see the light of day.”

Kate Kendell, executive director of the National Center for Lesbian Rights,Ā noted the Obama administration has mounted “a more full-throated defense” than what was necessary in itsĀ early defense of DOMA.

The 2009 defense of DOMA in the case of Smelt v. United States, the firstĀ brief the Obama administration filed in defense of the law,Ā inspired resentmentĀ in the LGBT community early last year for drawing on case law to compare same-sex marriage to pedophilia and bestiality.

“They included very offensive language around parenting,” Kendell said. “It wasn’t a direct comparison between LGBT relationships and pedophilia or bestiality, but it was close enough, and it was appalling.”

Kendell said her organization has had conversations with the Justice Department to make clear that those arguments were not only unacceptable and baseless. Following these conversations, she said the Obama administration made some changes in how it defended DOMA.

“They have made someĀ accommodations that well reflect the values that the administration say[s] they espouse, but I think — I’ll speak for ourselves for our purposes andĀ to our case — they certainly haven’t gone as far as they should go,” Kendell said.

Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, said even if the Obama administration opted not to defend DOMA, the Justice Department would have to formally notify Congress to give lawmakers the opportunity to defend the statute.

“There is a possibility for the Justice Department not to defend, but that doesn’t mean there won’t be a defense of the laws that Congress passes,” she said.

GLAD has filed two lawsuits against DOMA: Gill v. Office of Personnel Management, which is pending before the U.S. First Circuit Court of Appeals, and Pedersen v. Office of Personnel Management, which is pending before the U.S. District Court of Connecticut.

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Congress

Democratic lawmakers travel to El Salvador, demand information about gay Venezuelan asylum seeker

Congressman Robert Garcia led delegation

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Andry HernƔndez Romero (photo credit: Immigrant Defenders Law Center)

California Congressman Robert Garcia on Tuesday said the U.S. Embassy in El Salvador has agreed to ask the Salvadoran government about the well-being of a gay asylum seeker from Venezuela who remains incarcerated in the Central American country.

The Trump-Vance administration last month “forcibly removed” Andry HernĆ”ndez Romero, a stylist who asked for asylum because of persecution he suffered because of his sexual orientation and political beliefs, and other Venezuelans from the U.S. and sent them to El Salvador.

The White House on Feb. 20 designated Tren de Aragua, a Venezuelan gang, as an ā€œinternational terrorist organization.ā€ President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated PressĀ notesĀ allows the U.S. to deport ā€œnoncitizens without any legal recourse.ā€

Garcia told the Washington Blade that he and three other lawmakers — U.S. Reps. Maxwell Alejandro Frost (D-Fla.), Maxine Dexter (D-Ore.), and Yassamin Ansari (D-Ariz.) — met with U.S. Ambassador to El Salvador William Duncan and embassy staffers in San Salvador, the Salvadoran capital.

“His lawyers haven’t heard from him since he was abducted during his asylum process,” said Garcia.

The gay California Democrat noted the embassy agreed to ask the Salvadoran government to “see how he (HernĆ”ndez) is doing and to make sure he’s alive.”

“That’s important,” said Garcia. “They’ve agreed to that … we’re hopeful that we get some word, and that will be very comforting to his family and of course to his legal team.”

The U.S. Embassy in El Salvador in 2023. (Photo courtesy of the U.S. Embassy of El Salvador’s Facebook page)

Garcia, Frost, Dexter, and Ansari traveled to El Salvador days after House Oversight and Government Reform Committee Chair James Comer (R-Ky.) and House Homeland Security Committee Chair Mark Green (R-Tenn.) denied their request to use committee funds for their trip.

“We went anyways,” said Garcia. “We’re not going to be intimidated by that.”

Salvadoran President Nayib Bukele on April 14 met with Trump at the White House. U.S. Sen. Chris Van Hollen (D-Md.) three days later sat down with Kilmar Abrego Garcia, a Maryland man who the Trump-Vance administration wrongfully deported to El Salvador on March 15.

Abrego was sent to the country’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT. The Trump-Vance administration continues to defy a U.S. Supreme Court ruling that ordered it to “facilitate” Abrego’s return to the U.S.

Garcia, Frost, Dexter, and Ansari in a letter they sent a letter to Duncan and Secretary of State Marco Rubio on Monday demanded “access to” HernĆ”ndez, who they note “may be imprisoned at” CECOT. The State Department has not responded to the Blade’s request for comment about the correspondence.

Garcia said the majority of those in CECOT who the White House deported to El Salvador do not have criminal records.

“They can say what they want, but if they’re not presenting evidence, if a judge isn’t sending people, and these people have their due process, I just don’t understand how we have a country without due process,” he told the Blade. “It’s just the bedrock of our democracy.”

President Donald Trump greets Salvadoran President Nayib Bukele at the White House on April 14, 2025. (Public domain photo)

Garcia said he and Frost, Dexter, and Ansari spoke with embassy staff, Salvadoran journalists and human rights activists and “anyone else who would listen” about HernĆ”ndez. The California Democrat noted he and his colleagues also highlighted Abrego’s case.

“He (HernĆ”ndez) was accepted for his asylum claim,” said Garcia. “He (HernĆ”ndez) signed up for the asylum process on an app that we created for this very purpose, and then you get snatched up and taken to a foreign prison. It is unacceptable and inhumane and cruel and so it’s important that we elevate his story and his case.”

The Blade asked Garcia why the Trump-Vance administration is deporting people to El Salvador without due process.

“I honestly believe that he (Trump) is a master of dehumanizing people, and he wants to continue his horrendous campaign to dehumanize migrants and scare the American public and lie to the American public,” said Garcia.

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Congress

Goodlander endorses Pappas’s Senate bid

Announcement puts gay congressman on the path to securing his party’s nomination

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

U.S. Rep. Maggie Goodlander (D-N.H.) on Thursday announced she will not run to represent her state in the U.S. Senate, endorsing gay U.S. Rep. Chris Pappas’s (D-N.H.) bid for the seat of retiring U.S. Sen. Jeanne Shaheen, putting him on the path to secure the Democratic nomination.

“We are in the fight of our lifetimes right now, of a moment of real crisis and challenge,” she said. “I feel humbled and grateful to so many people across our state who have encouraged me to take a look at the U.S. Senate, and after a lot of thought and conversations with people I love and people I respect and people who I had never met before, who I work for in this role right now, I’ve decided that I’m running for re election in the House of Representatives.”

When asked by a reporter from the ABC affiliate station in New Hampshire whether she would endorse Pappas, Goodlander said, “Yes. Chris Pappas has been amazing partner to me in this work and for many years. And I really admire him. I have a lot of confidence in him.”

She continued, “He and I come to this work, I think with a similar set of values, we also have really similar family stories. Our families both came to New Hampshire over 100 years ago from the very same part of northern Greece. And the values that he brings to this work are ones that that I really, really admire. So I’m proud to support him, and I’m really excited to be working with him right now because we’ve got a lot of work to do.”

“Maggie Goodlander has dedicated her career to service, and we can always count on her to stand up to powerful interests and put people first,” Pappas said in a post on X. “I’m so grateful to call her my friend and teammate, and I’m proud to support her re-election and stand with her in the fights ahead.”

Earlier this month, former New Hampshire Gov. Chris Sununu, a Republican, announced he would not enter the Senate race, strengthening the odds that Democrats will retain control of Shaheen’s seat.

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Congress

EXCLUSIVE: Garcia demands answers on deportation of gay Venezuelan asylum seeker

Congressman’s correspondence was shared exclusively with the Blade

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Andry HernƔndez Romero (photo credit: Immigrant Defenders Law Center)

U.S. Rep. Robert Garcia (D-Calif.) is demanding answers from the Trump-Vance administration on its deportation of Andry HernĆ”ndez Romero, a gay Venezuelan makeup artist who was sent to a prison in El Salvador in violation of a federal court order and in the absence of credible evidence supporting the government’s claims about his affiliation with a criminal gang.

Copies of letters the congressman issued on Thursday to Immigration and Customs Enforcement and CoreCivic, a private prison contractor, were shared exclusively with the Washington Blade.

Garcia noted that HernƔndez, who sought asylum from persecution in Venezuela over his sexual orientation and political beliefs, had entered the U.S. legally, passed a preliminary screening, and had no criminal record.

Pro-bono lawyers representing HernƔndez during his detention in the U.S. pending an outcome in his asylum case were informed that their client had been removed to El Salvador a week after he failed to show for a hearing on March 13.

HernĆ”ndez’s family now fears for his safety while he remains in El Salvador’s Terrorism Confinement Center (CECOT), which has a well documented record of human rights abuses, Garcia said.

Additionally, the congressman wrote, while experts say Tren de Aragua does not use tattoos as identifiers, the “primary evidence” supporting HernĆ”ndez’s deportation based on his supposed links to the transnational Venezuelan gang “appears to have been two crown tattoos labeled ‘Mom’ and ‘Dad,’ which are common cultural symbols in his hometown.”

The determination about his links to or membership in the organization was made by a CoreCivic employee whose criminal record and misconduct as a law enforcement officer led to his termination from the Milwaukee Police Department, Garcia wrote in his letter to the company.

Requesting a response by May 1, the congressman asked CoreCivic President Damon T. Hininger to address the following questions:

  • What qualifications and training does CoreCivic require for employees tasked with making determinations about detainees’ affiliations?
  • What protocols are in place to ensure that determinations of gang affiliation are based on credible and corroborated evidence?
  • How does CoreCivic oversee and review the decisions made by its employees in such critical matters?
  • What mechanisms exist to prevent and address potential misconduct?
  • What is the nature of CoreCivic’s collaboration with ICE in making determinations that affect deportation decisions? Are there joint review processes?
  • What background checks and ongoing assessments are conducted for employees involved in detainee evaluations, particularly those with prior law enforcement experience?
  • What guidelines does CoreCivic follow regarding the use of tattoos as indicators of gang affiliation, and how does the company ensure that cultural or personal tattoos are not misinterpreted?

In his letter to Tae D. Johnson, acting director of ICE, Garcia requested answers to the following questions by May 1:

  • Did ICE personnel independently review and approve the determination made by CoreCivic employee Charles Cross Jr. identifying Mr. HernĆ”ndez Romero as a member of the Tren de Aragua gang?
  • What evidence, beyond Mr. HernĆ”ndez Romero’s tattoos, was used to substantiate the claim of gang affiliation?
  • Under what legal authority are private contractors like CoreCivic permitted to make determinations that directly impact deportation decisions?
  • What vetting processes and background checks are in place for contractors involved in such determinations? Are there oversight mechanisms to ensure their credibility and adherence to due process?
  • What guidelines does ICE follow regarding the use of tattoos as indicators of gang affiliation, and how does the company ensure that cultural or personal tattoos are not misinterpreted?

Together with U.S. Rep. Maxwell Frost (D-Fla.), Garcia wrote to U.S. Rep. James Comer (R-Ky.) on Tuesday requesting permission to bring a congressional delegation to CECOT for purposes of conducting a welfare check on detainees, expressing specific concern for HernĆ”ndez’s wellbeing. The congressmen said they would “gladly include any Republican Members of the committee who wish to participate.”Ā 

HernĆ”ndez’s case has drawn fierce criticism of the Trump-Vance administration along with calls for his return to the U.S.

Influential podcaster and Trump ally Joe Rogan spoke out in late March, calling the deportation “horrific” and “a horrible mistake.”

Last week, California Gov. Gavin Newsom (D) sent a letter to Kristi Noem, secretary of the U.S. Homeland Security, which manages ICE, demanding HernĆ”ndez’s immediate return and raising concerns with the right to due process amid the administration’s crackdown on illegal immigration.

HernĆ”ndez ā€œwas denied the opportunity to defend himself against unsubstantiated allegations of gang involvement or to present his asylum claim,ā€ the governor wrote. ā€œWe are not a nation that sends people to be tortured and victimized in a foreign prison for public relations victories.”

Immigrant Defenders Law Center President Lindsay Toczylowski, who is representing HernƔndez, has not been able to reach her client since his removal from the U.S., she told NBC News San Diego in a report published April 11.

ā€œUnder the Constitution, every single person has a right to due process, and that means they have a right to notification of any allegations the government is making against them and a right to go into court and prove that those allegations are wrong if that’s the case,ā€ she said. ā€œIn Andry’s case, the government never gave us that opportunity. In fact, they didn’t even bring him to court, and they have forcefully sent him to El Salvador without ever giving us any notice or without telling us the way that we could appeal their decision.ā€

“CECOT, this prison where no one has ever left, where people are held incommunicado, is a very dangerous place for someone like Andry,ā€ Toczylowski said.

In March, a DHS spokesperson posted on X that HernĆ”ndez’s ā€œown social media indicates he is a member of Tren de Aragua,ā€ though they did not point to any specific posts and NBC reported that reviews of his known social media accounts turned up no evidence of gang activity. Ā 

During a visit to CECOT in March, Time Magazine photographer Philip Holsinger photographed Romero and reported that the detainee plead his innocence — “I’m not a gang member. I’m gay. I’m a stylist.” — crying for his mother as he was slapped and his head was shaved.

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