National

Court strikes down DOMA in historic ruling

Anti-gay activist accuses Obama of ‘sabotaging’ case

Published

14 years ago

July 15, 2010

Melba Abreu & Beatrice Hernandez are plaintiffs in the case Gill et al. v. Office of Personnel Management et al. (Photo courtesy GLAD)

A federal court in Massachusetts has issued two decisions finding that part of the Defense of Marriage Act is unconstitutional in response to legal challenges against the statute.

Judge Joseph Tauro of the U.S. District Court of Massachusetts ruled July 8 in the case of Gill v. U.S. Office of Personnel Management that DOMA violates the Equal Protection Clause of the U.S. Constitution.

In his decision, Tauro writes that “only sexual orientation” differentiates married couples that can receive federal benefits and those who cannot.

“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution,” he writes.

In a separate decision in the case of Commonwealth of Massachusetts v. Department of Health & Human Services, Tauro concludes that regulating marriage is a state’s right under the U.S. Constitution’s 10th Amendment. He says that DOMA violates this right for Massachusetts.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment,” Tauro writes. “For that reason, the statute is invalid.”

In a statement, Freedom to Marry Executive Director Evan Wolfson praised the court for its decision in the Gill case.

“Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional,” he said. “The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason.”

Brian Brown, president of the National Organization for Marriage, which opposes marriage rights for LGBT couples, criticized the decisions and Tauro’s willingness to overturn DOMA.

“With only Obama to defend DOMA, this federal judge has taken the extraordinary step of overturning a law passed by huge bipartisan majorities and signed into law by President Clinton in 1996,” Brown said. “A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States.”

Brown attributed the rulings to the failure of U.S. Solicitor General Elena Kagan to defend DOMA adequately. Her nomination to become an associate justice for the U.S. Supreme Court is pending before the U.S. Senate.

“Under the guidance of Elena Kagan’s brief that she filed when she was solicitor general, Obama’s Justice Department deliberately sabotaged this case,” Brown said.

The rulings came in response to separate legal challenges filed last year by Massachusetts Attorney General Martha Coakley and Gay & Lesbian Advocates & Defenders.

During a conference call Thursday, Coakley said the court rulings were “a landmark decision” and a “very important step toward achieving equality for all married couples, particularly here in Massachusetts.”

“We believe that today is a victory for civil rights in Massachusetts and I hope progress toward the understanding of all as to why marriage equality is a civil rights issue,” she said.

Janson Wu, staff attorney for GLAD, said, “it’s almost certain” that both decisions will be stayed upon appeal to a higher court and that access to federal benefits for married same-sex couples right now is “almost somewhat an irrelevant point.”

“I think it’s safe to say that it’s likely that the judgment for both cases will not go into effect while the case is being appealed,” Wu said.

Both lawsuits in which the court reached decisions were aimed at Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages.

But Doug NeJaime, a gay law professor at Loyola Law School, said the result of the Gill case doesn’t necessarily mean an end to Section 3 of DOMA, but only the programs to which the plaintiff couples in the case were denied access.

“This decision itself, while it puts pressure on Congress to repeal DOMA and provide case law in which to have broader challenges, it’s just sort of an initial chipping away at Section 3,” he said.

Nan Hunter, a lesbian law professor at Georgetown University, said her understanding of the Gill lawsuit is that it “only deals with the particular programs that these plaintiffs were challenging.”

“However, if they sustain this victory on appeal, there won’t be anything left of Section 3 of DOMA,” she said. “It won’t make sense for a court to uphold it as to any other provisions of federal law.”

NeJaime said the Gill opinion could set precedent that would influence marriage lawsuits elsewhere. In particular, NeJaime noted a passage in which Tauro discusses the relationship between procreation and marriage.

“This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA,” Tauro writes.

The judge adds “a consensus” has emerged among the medical and psychological communities that children raised by LGBT people “are just as likely to be well-adjusted as those raised by heterosexual parents.”

NeJaime said Tauro’s decision to make this point as part of his ruling is “very relevant to broader analysis of the right to marry for same-sex couples.”

“I think he’s going down that path in a way that other courts might look to it,” he said.

NeJaime said this reasoning could be applied in the case of Perry v. Schwarzenegger, a legal challenge against the ban on same-sex marriage in California that is pending before Judge Vaughn Walker in district court.

Although social conservative groups defending the ban in this case have used the argument that marriage is for procreation, NeJaime said the Gill decision can provide a reference to counter that rationale.

“I think Judge Walker can look to not only the federal government’s rejection of those rationales in the DOMA cases, but this judge’s reasoning about why that’s not a good interest anyway,” NeJaime said.

Appeals likely for lawsuits

According to GLAD, the next step in the Gill case is for the federal government to decide whether it will appeal to the U.S. First Circuit Court of Appeals. That decision is expected within the next 60 days.

Tracy Schamler, a spokesperson for the U.S. Justice Department, said last week the Obama administration was still “reviewing the decision.” Many observers expect the rulings to be appealed.

Gary Buseck, legal director for GLAD, said he believed the Justice Department would have to appeal the decisions.

“Everyone tells us — and it seems to be true — that the executive branch has a responsibility to defend acts of Congress and it would be very difficult for them not to take an appeal of this,” he said. “I suppose anything is technically possible, but I think it would be unusual for them — highly unusual — for them not to appeal this decision from the judge.”

NeJaime said he also believed the Justice Department would appeal the decisions, although he didn’t believe the administration is required to do so.

“It’s certainly conventional to see a case like this [go] up the appeals chain, but there’s instances in which the government loses at the district court level and then there’s a policy change, so there’s nothing that forecloses that,” he said.

Still, Buseck said having a win at a lower court is helpful going into appeal and that Tauro wrote a “strong opinion” that will be helpful if the case goes to a higher court.

“We’ve got a platform, which is about the best possible platform we can have going to the First Circuit,” Buseck said.

NeJaime said the plaintiffs would have an added edge upon appeal with the Gill case because Tauro didn’t apply heightened scrutiny or consider LGBT people a suspect class in his opinion.

“If you went down the path of there’s a fundamental right because of the family relationship or sexual orientation as a suspect class, it would provide a sort of threshold question for both the Court of Appeals and the Supreme Court to really say, ‘Oh, he got it wrong,’ and then the rest of the analysis then sort of goes out the window,” NeJaime said.

Hunter said she believed having the case be appealed and succeed at a higher court would be beneficial in the effort to overturn DOMA.

“To have DOMA struck down by just one judge’s opinion — it’s not a very strong basis for getting rid of the statute,” she said. “So personally — and this is probably a reflection that I’m pretty optimistic about the overcome of repeal — I think we may better off, frankly, if they do appeal it and it goes to the U.S. Court of Appeals and wins in the Court of Appeals.”

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

Published

1 day ago

April 19, 2024

Christopher Kane

U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

Michigan

Mich. Democrats spar over LGBTQ-inclusive hate crimes law

Lawmakers disagree on just what kind of statute to pass

Published

2 days ago

April 18, 2024

Rob Salerno

Members of the Michigan House Democrats gather to celebrate Pride month in 2023 in the Capitol building. (Photo courtesy of Michigan House Democrats)

Michigan could soon become the latest state to pass an LGBTQ-inclusive hate crime law, but the state’s Democratic lawmakers disagree on just what kind of law they should pass.

Currently, Michigan’s Ethnic Intimidation Act only offers limited protections to victims of crime motivated by their “race, color, religion, gender, or national origin.” Bills proposed by Democratic lawmakers expand the list to include “actual or perceived race, color, religion, gender, sexual orientation, gender identity or expression, ethnicity, physical or mental disability, age, national origin, or association or affiliation with any such individuals.”

Democratic Gov. Gretchen Whitmer and Attorney General Dana Nessel have both advocated for a hate crime law, but house and senate Democrats have each passed different hate crimes packages, and Nessel has blasted both as being too weak.

Under the house proposal that passed last year (House Bill 4474), a first offense would be punishable with a $2,000 fine, up to two years in prison, or both. Penalties double for a second offense, and if a gun or other dangerous weapons is involved, the maximum penalty is six years in prison and a fine of $7,500.

But that proposal stalled when it reached the senate, after far-right news outlets and Fox News reported misinformation that the bill only protected LGBTQ people and would make misgendering a trans person a crime. State Rep. Noah Arbit, the bill’s sponsor, was also made the subject of a recall effort, which ultimately failed.

Arbit submitted a new version of the bill (House Bill 5288) that added sections clarifying that misgendering a person, “intentionally or unintentionally” is not a hate crime, although the latest version (House Bill 5400) of the bill omits this language.

That bill has since stalled in a house committee, in part because the Democrats lost their house majority last November, when two Democratic representatives resigned after being elected mayors. The Democrats regained their house majority last night by winning two special elections.

Meanwhile, the senate passed a different package of hate crime bills sponsored by state Sen. Sylvia Santana (Senate Bill 600) in March that includes much lighter sentences, as well as a clause ensuring that misgendering a person is not a hate crime.

Under the senate bill, if the first offense is only a threat, it would be a misdemeanor punishable by one year in prison and up to $1,000 fine. A subsequent offense or first violent hate crime, including stalking, would be a felony that attracts double the punishment.

Multiple calls and emails from the Washington Blade to both Arbit and Santana requesting comment on the bills for this story went unanswered.

The attorney general’s office sent a statement to the Blade supporting stronger hate crime legislation.

“As a career prosecutor, [Nessel] has seen firsthand how the state’s weak Ethnic Intimidation Act (not updated since the late 1980’s) does not allow for meaningful law enforcement and court intervention before threats become violent and deadly, nor does it consider significant bases for bias. It is our hope that the legislature will pass robust, much-needed updates to this statute,” the statement says.

But Nessel, who has herself been the victim of racially motivated threats, has also blasted all of the bills presented by Democrats as not going far enough.

“Two years is nothing … Why not just give them a parking ticket?” Nessel told Bridge Michigan.

Nessel blames a bizarre alliance far-right and far-left forces that have doomed tougher laws.

“You have this confluence of forces on the far right … this insistence that the First Amendment protects this language, or that the Second Amendment protects the ability to possess firearms under almost any and all circumstances,” Nessel said. “But then you also have the far left that argues basically no one should go to jail or prison for any offense ever.”

The legislature did manage to pass an “institutional desecration” law last year that penalizes hate-motivated vandalism to churches, schools, museums, and community centers, and is LGBTQ-inclusive.

According to data from the U.S. Department of Justice, reported hate crime incidents have been skyrocketing, with attacks motivated by sexual orientation surging by 70 percent from 2020 to 2022, the last year for which data is available.

Twenty-two states, D.C., Puerto Rico, and the U.S. Virgin Islands have passed LGBTQ-inclusive hate crime laws. Another 11 states have hate crime laws that include protections for “sexual orientation” but not “gender identity.”

Michigan Democrats have advanced several key LGBTQ rights priorities since they took unified control of the legislature in 2023. A long-stalled comprehensive anti-discrimination law was passed last year, as did a conversion therapy ban. Last month the legislature updated family law to make surrogacy easier for all couples, including same-sex couples.

A bill to ban the “gay panic” defense has passed the state house and was due for a Senate committee hearing on Wednesday.

Indiana

Drag queen announces run for mayor of Ind. city

Branden Blaettne seeking Fort Wayne’s top office

Published

2 days ago

April 18, 2024

Brody Levesque

Branden Blaettner being interviewed by a local television station during last year’s Pride month. (WANE screenshot)

In a Facebook post Tuesday, a local drag personality announced he was running for the office of mayor once held by the late Fort Wayne Mayor Tom Henry, who died last month just a few months into his fifth term.

Henry was recently diagnosed with late-stage stomach cancer and experienced an emergency that landed him in hospice care. He died shortly after.

WPTA, a local television station, reported that Fort Wayne resident Branden Blaettne, whose drag name is Della Licious, confirmed he filed paperwork to be one of the candidates seeking to finish out the fifth term of the late mayor.

Blaettner, who is a community organizer, told WPTA he doesn’t want to “get Fort Wayne back on track,” but rather keep the momentum started by Henry going while giving a platform to the disenfranchised groups in the community. Blaettner said he doesn’t think his local fame as a drag queen will hold him back.

“It’s easy to have a platform when you wear platform heels,” Blaettner told WPTA. “The status quo has left a lot of people out in the cold — both figuratively and literally,” Blaettner added.

The Indiana Capital Chronicle reported that state Rep. Phil GiaQuinta, who has led the Indiana House Democratic caucus since 2018, has added his name to a growing list of Fort Wayne politicos who want to be the city’s next mayor. A caucus of precinct committee persons will choose the new mayor.

According to the Fort Wayne Journal Gazette, the deadline for residents to file candidacy was 10:30 a.m. on Wednesday. A town hall with the candidates is scheduled for 6 p.m. on Thursday at Franklin School Park. The caucus is set for 10:30 a.m. on April 20 at the Lincoln Financial Event Center at Parkview Field.

At least six candidates so far have announced they will run in the caucus. They include Branden Blaettne, GiaQuinta, City Councilwoman Michelle Chambers, City Councilwoman Sharon Tucker, former city- and county-council candidate Palermo Galindo, and 2023 Democratic primary mayoral candidate Jorge Fernandez.