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Jackson holds firm in questioning over marriage equality

Texas Republican compares decision to Dred Scott

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From left, Judge Ketanji Brown Jackson and Sen. John Cornyn (R-Texas) at the United States Senate Committee on the Judiciary on March 22, 2022. (Washington Blade photos by Michael Key)

The U.S. Supreme Court ruling for same-sex marriage ā€” issued nearly seven years ago in 2015 ā€” is considered settled law and in the rear-view mirror of history for many Americans, but Sen. John Cornyn (R-Texas) opted to press Ketanji Brown Jackson on the decision as an example of policy-making from the bench in questions during her confirmation hearing.

Jackson, nominated by President Biden to serve on the U.S. Supreme Court, stood firm on Tuesday in response to the questions despite lamentations from Cornyn the decision found a due process and right for same-sex couples to marry that overruled the will of the people who voted to ban gay nuptials in his state.

ā€œThat is the nature of a right,ā€ Jackson replied. ā€œWhen there is a right, it means that there are limitations on regulation, even if people are regulating pursuant to their sincerely held religious beliefs.ā€

In the nearly 15-minute exchange between Cornyn and Jackson, the Texas Republican pressed her on the expansive interpretation by the courts of due process and equal protection clauses, which he said led to decisions condemned to the dustbin of history like Dred Scott and Plessy v. Ferguson.

Cornyn, however, also included with those rulings the 2015 decision in Obergefell v. Hodges, which he said was a “dramatic departure from previous laws in the states and in the nation.” (Cornyn throughout the questioning had difficulty pronouncing the name “Obergefell,” which at least one time he called the “Ober-fell” case.)

“In the opinions that were written there at the time, it was noted that here we are 234 years after the Constitution had been ratified, 135 years since the 14th Amendment had been ratified, that the Supreme Court articulated a new fundamental right, which is a right to same-sex marriage,” Cornyn said.

Cornyn recalled at the time 11 states and D.C. had legalized same-sex marriage, but said 35 states had put the question on the ballot and 32 had decided to “maintain the traditional definition of marriage between a man and a woman.”

The Texas Republican went on to describe the issue as not just an overriding the will of the states and the people, but also major religions, and asked Jackson if she agrees “marriage is not simply a governmental institution, it’s also a religious institution.”

When Jackson replied, “Well, senator, marriages are often performed in religious institutions,” Cornyn followed up with questioning on whether she agrees many major religions, including Christianity, Judaism, and Islam, have defined marriage as one man, one woman (ignoring denominations within those religions, such as Episcopal and Presbyterian Church, that recognize and wed same-sex couples).

Jackson wouldn’t engage with Cornyn beyond what was directly necessary: “I am aware that there are various religious faiths that define marriage in a traditional way.”

That’s when Cornyn framed the Obergefell decision as stepping up a conflict between religious views and the decision of the court.

“Do you see that when the Supreme Court makes a dramatic pronouncement about the invalidity of state marriage laws, that it will inevitably set in conflict between those who ascribe to the Supreme Court’s edict and those who have a firmly held religious belief that marriage is between a man and a woman?” Cornyn asked.

Jackson, as is customary for a nominee up for a seat on the Supreme Court, declined to offer her views, pointing out “these issues are being litigated, as you know, throughout the courts” and therefore she was limited in what she could say.

But Cornyn wouldn’t up let up, pressing Jackson again on the Obergefell ruling. Jackson responded the “nature of the right” found the U.S. Constitution trumps regulation “even if people are regulating pursuant to their sincerely held religious beliefs.”

Cornyn continued his questioning by asking whether the concept of marriage is enshrined in the Constitution, drawing on the dissents from Chief Justice John Roberts and Associate Justice Samuel Alito lamenting opponents of same-sex marriage will be labeled as bigots.

More broadly, Cornyn went on to lament the substantive due process rights found by the courts as “another way for judges to hide their policymaking under the guise of interpreting the Constitution.”

Jackson gave an answer demonstrating her knowledge of case law, saying courts have found the right to due process to mean “not just procedural rights relative to government action but also the protection of certain personal rights related to intimacy and autonomy.”

“They include things like the right to rear one’s children, I believe the right to travel, the right to marriage, interracial marriage, the right to abortion, contraception,” Jackson said.

Cornyn interjected the same interpretation led to the Dred Scott decision, citing “treating slaves as chattel property” as an another outcome of the expansive intrepretation of the due process clause.

After more questioning from Cornyn on whether “you can use substantive due process to justify basically any result whether it’s conservative or liberal, libertarian or conservative,” he went on to ask Jackson whether she can understand “why ordinary folks wonder, Who do these people think they are? And where does this authority come from?” Jackson, in response, kept her answer simple: “Absolutely, senator, I do understand it.”

It should be noted the Supreme Court has rejected subsequent legal claims to overturn the Obergefell decision, or even to chip away at the decision. Even with the 6-3 conservative majority on the Supreme Court, justices in 2020 declined to hear a case brought by Indiana seeking to challenge the decision on the basis of birth certificates for the children for women in same-sex marriages. Alito, however, and Associate Justice Clarance Thomas have declared war on Obergefell, writing in a filing two years ago the ruling falls short in accommodating religious freedom.

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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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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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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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