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D.C. Appeals Court hears gay marriage case

City defends law halting effort to repeal same-sex marriage law

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Same-sex marriage opponents Rev. Anthony Evans, left, and Bishop Harry Jackson talk Tuesday outside the D.C. Court of Appeals. A case before the court could force the city to put its same-sex marriage law before voters in a ballot initiative. (Washington Blade photo by Michael Key)

In what legal observers called an unusual development, the full nine-judge D.C. Court of Appeals heard oral arguments Monday for a lawsuit seeking to force the city to put its same-sex marriage law before voters in a ballot initiative.

At issue is whether a 1970s amendment to the D.C. City Charter that allows voters to pass or repeal laws through an initiative or referendum can legally include a provision banning such ballot measures if they would take away rights from minorities.

The City Council added the provision to the charter amendment at the request of gay activists. The effort by same-sex marriage opponents to challenge the provision represents the first time it has been seriously questioned in more than 30 years.

All but two of the judges asked pointed questions that appeared to challenge the legal arguments presented by the lawyers on both sides of the case, taking on the role of devilā€™s advocate.

ā€œThe court asked a variety of probing questions, as they should have,ā€ said Thomas Williamson, an attorney with Covington & Burling, which filed a friend of the court brief on the side of the D.C. government in defense of the law restricting ballot measures.

ā€œBut it seemed that a consistent theme in their questions was a sensitivity to the importance of protecting civil rights of a vulnerable minority, which is really what this case is about here ā€” the right of same-sex couples to enjoy marriage and have the same status for their marriage as all other citizens of the District,ā€ Williamson said.

Five of the nine judges, including Chief Judge Eric Washington, were appointed by President George W. Bush. President Bill Clinton appointed the remaining four.

Williamson and local gay rights attorney Mark Levine said itā€™s unusual for the Court of Appeals to hear a case for the first time en banc, or with all of its judges, instead of its usual practice of assigning a three-judge panel to hear a case.

One significant outcome of an en banc case is that the full court has the authority to overturn previous decisions it handed down either en banc or through a three-judge panel if the previous rulings would interfere with its intentions in a current case. Williamson said one possible ruling the court might overturn in the current case over the D.C. same-sex marriage law is the 1990s case known as Dean v. the District of Columbia.

In that case, the appeals court rejected a claim by a gay male couple that the cityā€™s existing marriage law allowed for the issuance of marriage licenses to same-sex couples because of the Human Rights Actā€™s ban on discrimination based on gender and sexual orientation. At that time, the court ruled that the marriage law restricting marriages to opposite-sex couples took precedence over the Human Rights Law.

In recent years, gay rights attorneys and D.C. government officials have argued that the Dean decision was no longer relevant because the City Council had since made sweeping changes to the marriage law, providing extensive rights, including marriage, for same-sex couples.

Austin Nimocks, legal counsel for the Alliance Defense Fund, a Christian litigation group, argued the case Tuesday for Bishop Harry Jackson and other local opponents of same-sex marriage who filed the lawsuit seeking a ballot measure to overturn the gay marriage law.

Jackson initially filed his lawsuit before the D.C. Superior Court last fall, after the D.C. Board of Elections & Ethics rejected his application for a voter initiative calling for defining marriage in D.C. as the union between one man and one woman. The board ruled that the initiative would violate the provision added to the referendum and initiative law that bans such ballot measures if they would result in discrimination prohibited by the Human Rights Act.

The effect of the initiative, if approved by voters, would be to repeal the same-sex marriage law that the City Council passed and Mayor Adrian Fenty signed in December. The law took effect March 3 after it cleared a required 30 legislative day review by Congress.

Jackson then filed suit seeking to overturn the election boardā€™s decision. In January, Superior Court Judge Judith Macaluso upheld the election boardā€™s decision, saying the law cited by the city to ban such ballot measures was valid.

Tuesdayā€™s hearing before the D.C. Court of Appeals came about after Jackson and his supporters appealed Macalusoā€™s ruling.

Nimocks sidestepped reportersā€™ questions about the appeals court judgeā€™s comments, including those who challenged his arguments. He said after the hearing that his side is correct in claiming the 30-year-old provision in the D.C. Charter barring certain ballot measures violates the full District of Columbia Charter.

The cityā€™s charter is considered to be equivalent to a state constitution, and legal experts say all laws enacted by the City Council and signed by the mayor must be consistent with any restrictions or limits set by the charter.

Nimocks argued before the court Tuesday that the charter amendment that created the cityā€™s voter initiative and referendum system sets just one restriction on such ballet measures: a ban on voters directly deciding on matters related city funding or taxes.

He said the charter amendment, which the City Council passed and Congress approved, doesnā€™t allow further restrictions that would prevent a ballot measure seeking to curtail minority rights.

ā€œThe people have a right to vote thatā€™s guaranteed by the District of Columbia Charter,ā€ he said. ā€œAnd the City Council cannot amend the charter. They cannot do anything to undermine the peopleā€™s right to vote.ā€

In his written brief, Nimocks also argued that the Dean case was still a factor that the appeals court should consider.

Todd Kim, the D.C. Solicitor General who argued on behalf of the city, told the court the charter amendment establishing the initiative and referendum system gives the City Council authority to make some changes in the system to carry out its ā€œpurpose.ā€

Kim noted that the Council wrote the charter amendment and that part of the purpose in creating it was to place certain restrictions consistent with longstanding city policy, including policies related to rights of minorities. The D.C. Human Rights Act, which was in place at that time, included a ban on discrimination based on sexual orientation, Kim said, indicating the cityā€™s overall policy and purpose was to protect the rights of gays and lesbians along with other minorities.

He also noted that Congress approved the charter amendment through its normal 30 legislative day review, further solidifying its status as a valid law.

In another development that pleased gay activists attending Tuesdayā€™s appeals court hearing, Judge Phyllis Thompson, a Bush appointee, pointed out that D.C. voters approved a statehood constitution in the early 1980s that included a provision banning initiatives and referenda that would take away rights of minorities, including gays.

Thompson appeared to be challenging Nimocksā€™ arguments that voters should have the right to decide on the gay marriage law by noting that D.C. voters approved the ban on ballot measures seeking to take away rights for gays and others.

Legal experts have said the statehood constitution passed by voters had no legal standing because D.C. statehood ā€” which many D.C. residents favored in the 1980s ā€” could not come about without approval by Congress. Congress never took the proposal seriously.

But Levine and Williamson said Thompsonā€™s decision to raise the issued shows that she, and possibly a number of her colleagues on the appeals court, are sympathetic to the city law banning ballot measure that would take away rights, including the right of same-sex couples to marry in D.C.

ā€œMarriage equality has already brought critical rights and responsibilities to hundreds of same-sex couples, yet outside forces are determined to undo our progress,ā€ said Aisha Mills, president of the Campaign for All D.C. Families, one of the local groups that lobbied for a same-sex marriage law.

ā€œAs the courts have uniformly recognized in upholding D.C.ā€™s comprehensive anti-discrimination laws, no one should have to have their marriages ā€” or any of their civil rights ā€” put to a public vote,ā€ she said.

Jackson was among more than a hundred spectators to attend Tuesdayā€™s appeals court hearing. The spectators appeared to be equally divided between same-sex marriage opponents and supporters, with many of the cityā€™s prominent LGBT activists in attendance.

In addition to Washington and Thompson, the appeals court members include Judges Vanessa Ruiz, Inez Smith Reid and Stephen Glickman, who are Clinton appointees, and Judges John Kramer, John Fisher, Anna Blackbourne-Rigsby and Kathryn Oberly, who are Bush appointees.

Court observers say a decision on the marriage case could come anytime between the next several months and more than a year. The losing party could appeal the case to the U.S. Supreme Court, but many legal observers believe the high court would be unlikely to take the case.

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District of Columbia

D.C. mayorĀ honors 10th anniversary of Team Rayceen Productions

LGBTQ entertainment, advocacy organization praised for ā€˜vital workā€™

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Rayceen Pendarvis co-founded Team Rayceen Productions. (Washington Blade photo by Michael Key)

D.C. Mayor Muriel Bowser today issued an official proclamation declaring Monday, March 18, 2024, as Team Rayceen Day in honor of the local LGBTQ entertainment and advocacy organization Team Rayceen Productions named after its co-founder Rayceen Pendarvis.

ā€œWhereas Rayceen, along with Team Rayceen Productions co-founder, Zar, have spent 10 years advocating for the Black LGBTQI+ community using various forms including in-person events, social media, and YouTube,ā€ the proclamation states.

The proclamation adds that through its YouTube Channel, Team Rayceen Productions created a platform for ā€œBlack LGBTQIA+ individuals to discuss various topics including spotlighting nonprofit organizations and small businesses, voter registration and participation, the state of LGBTQIA+ rights and resources in D.C, gender equality and equity, and the amplification of opportunities to bring the community together.ā€

It also praises Team Rayceen Productions for its partnership with the Mayorā€™s Office of LGBTQ Affairs in helping to produce ā€œexciting events like the District of Pride talent showcase held each June and the iconic 17th Street High Heel Race celebrated in October.ā€

ā€œWhereas I thank Team Rayceen Productions for its vital and necessary work and am #DCProud to wish you all the best as you continue to support Black LGBTQIA+ residents across all 8 Wards,ā€ the proclamation continues.

ā€œNow, therefore, I, the Mayor of Washington, D.C., do hereby proclaim March 18, 2024, as TEAM RAYCEEN DAY in Washington, D.C. and do commit this observance to all Washingtonians,ā€ it concludes.

ā€œWe thank Mayor Bowser for this special proclamation, which highlights where it all began, with the Black LGBTQIA+ community of Washington, D.C,ā€ Team Rayceen Productions says in a statement. ā€œStarting with The Ask Rayceen Show, Reel Affirmation, and events with D.C. Public Library to Art All Night, Silver Pride by Whitman-Walker, and events with the Mayorā€™s Office of LGBTQ Affairs, we are #dcproud of what we have accomplished in the Nationā€™s Capital,ā€ the statement says. 

“For TEAM RAYCEEN DAY, we thank the diverse group of individuals who have made everything we have done possible by volunteering their time and talents over the past decade ā€“ as online co-hosts, event staff, performers, DJs, photographers, and more,ā€ says the statement.

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D.C. jury finds AARP Services illegally fired gay man

Former employee awarded $2.1 million in damages

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Richard A. Deus, Jr.

A D.C. Superior Court jury on March 15 handed down a verdict finding that the D.C.-based AARP Services, Inc., an arm of the AARP that interacts with businesses supportive of the nationā€™s seniors, illegally fired a gay manager because of his sexual orientation.

The juryā€™s verdict, which it said was based on a ā€œpreponderance of evidence,ā€ came six years after Richard A. ā€˜Rickā€™ Deus Jr., who worked for AARP and AARP Services for 11 years, filed a lawsuit against his former employer in May 2018. The lawsuit charges that AARP Services violated the D.C. Human Rights Act by firing him after falsely accusing him of accepting gifts for travel from businesses affiliated with AARP that violated AARP employee ethics policies.

His lawsuit says he was fired in February 2018. At that time, he held the title of director of program management at AARP Services.

The lawsuit says AARP Services cited the alleged travel violations as the reason for its decision to fire him. The lawsuit named AARP Services and its then chief executive officer, Lawrence Flanagan, as the two defendants responsible for Deusā€™s firing.

But the juryā€™s verdict only named AARP Services as being at fault in the firing. It did not find Flanagan at fault and did not hold him responsible for damages, even though Flanagan testified at the trial that he made the final decision to terminate Deus on grounds that Deus violated the travel policy.

The jury also chose not to hold AARP Services responsible for paying punitive damages to Deus, whose lawsuit called for $5 million in compensatory damages and an additional $5 million in punitive damages.

In its verdict, according to online court records, the jury awarded Deus $1,612,916.18 in compensatory damages and $578,351 in damages for emotional distress that AARP Services is required to pay Deus. The court records show the jury awarded Deus another $1,118.89 to be paid by AARP Services for its alleged breach of contract with him in its decision to fire him.

An attorney representing AARP Services immediately following the verdict filed a motion requesting that Superior Court Judge Shana Frost Matini, who presided over the trial, issue a ā€œdirected verdictā€ overturning the juryā€™s verdict. 

Such a motion is often filed by individuals or organizations on the losing side of a lawsuit, but such requests are rarely approved. Matini said she would schedule a hearing to consider the motion in May.

ā€œIā€™m thrilled that the jury found that I was treated differently from my co-workers and discriminatorily fired,ā€ Deus told the Washington Blade after the jury handed down its verdict. ā€œThatā€™s clearly what they found, and they awarded emotional pain and suffering,ā€ he said. ā€œBut overall, Iā€™m elated. Itā€™s been six years of my life that Iā€™ve been fighting and telling people that I was treated differently than anybody else and today I got my vindication.ā€

Laura Segal, AARPā€™s Senior Vice President for External Affairs, told the Blade in a statement, ā€œAARP is pleased with the juryā€™s verdict that Lawrence Flanagan lawfully terminated Richard Deusā€™s employment.ā€ She added, ā€œAARP Services, Inc. (ASI) disagrees with the remainder of the verdict and is exploring all options for further legal review. We remain committed to an inclusive culture and warmth and belonging, where everyone is welcome.ā€

Attorneys representing AARP Services argued at the trial and presented witnesses denying Dues was fired because of his sexual orientation. They asserted that AARP Services had and still has gay and lesbian employees and managers and that the company has a longstanding policy of prohibiting  discrimination on grounds of sexual orientation or marital status.

Deusā€™s lawsuit accused AARP Services of targeting Deus for discrimination based on his marriage to another man as well as for his sexual orientation. The jury did not find that AARP Services engaged in discrimination against Deus based on his marital status.

Flanagan was among the lead defense witnesses who testified at the nine-day-long trial. He testified that he has worked for many years with gay colleagues, has a gay relative who he admires, and would never have allowed his staff to engage in discrimination while he served as AARP Services CEO.

He noted in his testimony that his decision to fire Deus was based, in part, on the recommendation of AARP Servicesā€™ human resources or personnel director, Michael Loizzi, who is an openly gay man. Loizzi, who also testified at the trial, said that as a gay man he would never have called for Deus or anyone else to be fired because of their sexual orientation. He stated in his testimony that he recommended to Flanagan that Deus be fired because Deus violated AARP Services travel policy and lied to his supervisor about the details of the travel to get his supervisorā€™s approval under false pretenses.

Deus, during his own testimony, strongly disputed claims that he obtained permission for his travel by providing false information to his supervisor. His lawsuit states that both his supervisor and AARP Servicesā€™ legal counsel cleared him for the two trips that he has been accused of taking in violation of policy.

His lawsuit identifies heterosexual AARP and AARP Services employees who have taken business trips like the two taken by Deus that allegedly violated travel policy who were not fired or disciplined. A few faced disciplinary actions but were allowed to retain their jobs, the lawsuit says.

ā€œThis case is about the unequal treatment of a gay man when juxtaposed to the treatment of our heterosexual comparators,ā€ Darrell Chambers, Deusā€™s lead attorney, told the Washington Blade after the verdict. ā€œThis is not a case about an organization or a group of people who hate gay people and decided that they were going to fire this man because they hate him,ā€ Chambers said.

ā€œInstead, itā€™s a case where the punishment that they consistently applied to gay employees, re Mr. Deus and Mr. Sanders, was harsher, far harsher than the punishment they applied to heterosexual employees who committed the same or similar acts.ā€

Chambers was referring to former AARP Services employee Jack Sanders, who is gay and who testified on video played at the trial that he was summarily fired on grounds that he allegedly sent pornographic photos or video images to another AARP Services employee, who complained about receiving the pornographic images.

Sanders has said the pornographic images in question were sent to the employee by his ex-boyfriend who wanted to portray Sanders in a negative light. Through telephone and wire transmission records Sanders was able to show that the images in question were sent from a device in Washington, D.C. at a time that Sanders was in Chicago, proving that Sanders could not have been the person who sent the images.

Deusā€™s attorneys brought out at the trial that AARP Services failed to give Sanders a chance to defend himself, prompting him to file his own lawsuit against AARP Services for which a settlement was reached. The terms of the settlement have not been publicly disclosed. But Deusā€™s attorneys cited Sandersā€™s case as yet another example of how AARP Services has treated gay employees differently from heterosexual employees.

AARP Services attorney Alison Davis argued during the trial that discrimination based on Deusā€™s sexual orientation had nothing at all to do with the decision to fire him. Davis told the jury that the two trips that Deus took that led to his firing, one to New York City and the other to New Orleans to attend the Sugar Bowl football game, were financed in part by companies that do business with AARP in violation of AARP and AARP Services policies for travel. Among other things, she said the Sugar Bowl is considered a championship game that has a value higher than smaller gifts that AARP employees are allowed to accept.

Deus testified that his reason for accepting an invitation to the Sugar Bowl game was to spend time with the new account director at the Allstate insurance company, which paid for the Sugar Bowl game ticket. ā€œIn 2019, we were going to be negotiating a new contract with Allstate and we wanted to establish a good relationship with her before the contract negotiations began,ā€ he told the Blade. ā€œThatā€™s how you do business.ā€

Deus said he was referring to Allstateā€™s business relationship with AARP Services, which he said, similar to its interaction with other businesses, helps AARP provide support and services to the nationā€™s senior citizens.

In her cross examination of Deus on the witness stand, Davis also raised AARP Servicesā€™ claim in contesting the lawsuit that the emotional distress and depression that Deus says he suffered because of his firing could have been caused by issues unrelated to the firing. Davis asked Deus if his emotional distress was caused by stress that Deus has said he experienced years earlier when he came out as gay to his parents, who are ordained ministers, and in his interaction with his sister, who had been diagnosed as being bipolar. 

Deus said that while his coming out to his conservative parents nearly 30 years ago and his sisterā€™s mental health issues were a concern years earlier, he and his parents had long since reconciled over his sexual orientation and his sisterā€™s mental health issues played no role whatsoever in the emotional distress he experienced after being fired by AARP Services.

In her cross examination of Deus on the witness stand, Davis also asked him if his decision to be interviewed by the Washington Blade last year for a Blade story about his lawsuit could have contributed to the difficulty, he said he encountered in finding employment after he was fired by AARP Services. Deus, who testified that he was hired by at least one other company that later laid him off, said he did not believe a Blade story about his lawsuit would have an adverse impact on him.  

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Baltimore

Power Plant Live! opens Club 4, its first LGBTQ bar

Ryan Butler, known by his drag persona Brooklyn Heights, helped launch venue

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Ryan Butler, also known as drag performer Brooklyn Heights, stands in the space at Power Plant Live! that will house Club 4. (Photo by Kaitlin Newman for the Baltimore Banner)

BY JOHN-JOHN WILLIAMS IV | Ryan Butler wanted a place where all members of the LGBTQ community could enjoy drag, drinks and fellowship in a safe space. He found it by the Inner Harbor.

Butler jumped at the opportunity to help open Club 4, the first LGBTQ-themed bar to occupy the popular Power Plant Live! venue.

The rest of this article can be read on the Baltimore Banner’s website.

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