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Will Obama appeal DOMA court rulings?

Justice Dept. has until Oct. 12 to decide

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President Obama’s commitment to repealing the Defense of Marriage Act is likely to come under enhanced scrutiny next week when the U.S. Justice Department announces its decision on whether or not it will appeal federal court rulings against the statute.

Legal experts across the board are expecting the administration to appeal the decisions as many LGBT advocates grumble that the defense of DOMA in court undermines Obama’s campaign pledge to advocate for same-sex couples.

Richard Socarides, a gay New York attorney and former adviser to President Clinton, said he expects the Justice Department to appeal the cases because he believes the administration hasn’t shown any signs of changing its position after defending DOMA at the district court level.

“I think that they’re going to continue to battle the gay rights movement in the courts,” Socarides said. “I think it continues to be one of the most unfortunate decisions of the president’s entire first two years in office and really something that is perhaps the most troubling part of these first two years of his presidency.”

Socarides said he doesn’t think the administration is compelled to appeal the decisions to the U.S. First Circuit Court of Appeals even as he acknowledged that debate has taken place over whether the president can decide against upholding a federal statute.

“I think that it’s clear now that the president has the option of declining to defend laws that he believes are not constitutional,” Socarides said. “This law has now been declared unconstitutional, so he could agree with the federal district court … and choose not to defend it.”

Evan Wolfson, executive director of Freedom to Marry, also predicted the administration will appeal the decisions made in the DOMA cases because he believes Justice Department officials think they’re required to do so.

Still, Wolfson said the extent to which the Justice Department defends DOMA at the U.S. First Circuit Court of Appeals would be an appropriate gauge to determine the Obama administration’s commitment to supporting LGBT people.

“I think the Justice Department can argue they have to appeal, but they should not be trying to win at all costs, and they should urge the court to adopt a presumption of unconstitutionality for the cruel exclusion from marriage that they themselves admit is discrimination,” Wolfson said.

On July 8, U.S. District Court Judge Joseph Tauro ruled in two separate cases — Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services — that the part of DOMA prohibiting federal recognition of same-sex marriage is unconstitutional.

The Obama administration defended DOMA when both those cases came before the U.S. District Court of Massachusetts.

In response to a query on the whether the administration would appeal the rulings, the White House deferred comment to the Justice Department, which didn’t respond.

The deadline for making a decision in the Commonwealth case — filed by Massachusetts Attorney General Martha Coakley — is Oct. 12.

The Justice Department doesn’t have to appeal the decision in the Gill case, filed by Gay & Lesbian Advocates & Defenders, until Oct. 18 because the court didn’t enter judgment in the case until later.

Still, Lee Swislow, GLAD’s executive director, said her organization is anticipating the Obama administration will announce its decision for both cases at the same time.

“From an efficiency point of view, the cases are clearly connected and it would make sense for the government to appeal both of them on the same day,” she said.

Announcing a decision to appeal both cases at the same time would also limit the amount of negative press the White House would receive to one day as opposed to stringing out criticism over a series of days.

Swislow said she’s expecting the administration to appeal both lawsuits and said doing so means the Justice Department is doing its duty of defending federal laws.

“I don’t think you can read much into it in terms of the administration’s support in general of LGBT rights,” she said. “From a legal point of view, they have to defend the law or write an official letter to Congress on why they’re not appealing.”

After the Justice Department appeals the decisions to the First Circuit, Swislow said she expects a series of briefs will be filed to the appellate court on both sides, including friend-of-the-court briefs from supporters and opponents of DOMA.

Once oral arguments take place, those involved with the litigation will await the decision of the court.

“We could have a decision anywhere from a year from now to a year-and-a-half from now if they follow their average, and that’s all we have to go on is how long it usually takes at the First Circuit court,” Swislow said.

Once the First Circuit has made its rulings, Swislow said deciding whether or not to appeal the case further to the U.S. Supreme Court would be different for the Obama administration.

Swislow said Justice Department officials could say they’ve “done their job” and not challenge the ruling further — even as she acknowledged her organization would love a win for the cases at the Supreme Court.

“If we win at the First Circuit Court of Appeals, the question of whether to take it to the Supreme Court or not, I think, is a different calculation,” she said.

Even as many LGBT rights supporters bemoan the administration’s defense of DOMA, others say continued support for the law in court could have some advantages.

Defenders of the Obama administration have said defending anti-gay laws such as DOMA sets a precedent that would prevent future administrations from allowing litigation against pro-laws to go unchallenged.

In an article about the future of litigation against “Don’t Ask, Don’t Tell,” Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, was quoted last week in Politico as suggesting the administration’s defense of the law in court would allow the federal hate crimes law to stay on the books.

“What happens when there’s a legal challenge to, say, hate crimes [law] in a next administration, a possible Republican administration?” Sarvis reportedly said. “Will they defend the federal statute?”

Swislow expressed similar beliefs that defending DOMA would set a precedent for subsequent administrations that could be hostile to LGBT rights.

“We expect them to defend this case and we’re not mad at them for defending this case, and, yes, the process of the Justice Department — that mandate, really — to defend the law can help us,” she said.

But Socarides scoffed at the notion that defending laws like DOMA would keep pro-gay laws safe under future administrations.

“I know that a lot of people make it in defense of the administration, but to me, it’s an entirely ludicrous argument,” Socarides said. “That argument turns all logic on its head. We’re not going to defend civil rights because some day the Republicans may choose not to defend civil rights.”

In another respect, appealing the lawsuits to the First Circuit could be beneficial to same-sex couples throughout New England because the higher court has jurisdiction over more states.

A favorable ruling at the First Circuit could invalidate part of DOMA for not just married same-sex couples in Massachusetts, but also couples living in Connecticut, Vermont and New Hampshire.

Swislow said an appeal of the DOMA cases is “really in our interest” because a victory only at the district court level would “only affect our particular plaintiffs” and not anyone else.

“It’s much better, in fact, to have the case appealed so that the victory in the appellate court … affects the First Circuit [and] a victory in the Supreme Court affects the whole country,” she said.

Doug NeJaime, a gay law professor at Loyola Law School, also said an appeal in the GLAD case could be beneficial to married same-sex couples across the nation because of the strong case made by plaintiffs.

“This is a very carefully and limited challenge seeking some federal recognition of married same-sex couples, but only affecting states where couples are allowed to actually enter into marriages that are recognized,” NeJaime said. “So, I think this would actually be a good issue to have work its way up the appellate chain.”

Still, Socarides said the Obama administration shouldn’t be considered a friend to the LGBT community for appealing the lawsuits because the president hasn’t said he’s appealing them for the purpose of having a stronger ruling.

“If the United States came back and said we believe this is unconstitutional, but we’re going to appeal it because we want a ruling from a court of appeals declaring it unconstitutional, that would be terrific, but they don’t say that, do they?” he said.

(Obama photo is a Blade file photo by Michael Key)

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Queen Jean is Tony’s first transgender winner

Designer/activist wins for work on ‘Cats: The Jellicle Ball’

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Queen Jean (Screen capture via vulture/YouTube)

It was a historic night at the 79th annual Tony Awards on Sunday as Queen Jean won the award for Best Costume Design of a Musical, making her the first out transgender person to win a Tony.

“This experience has been monumental. We are here for the legacy of queer people, trans people,” she said. “We are taking up space in ways we have to take up space. We have to shift the paradigm. So I just want to say, thank you all so much for this incredible honor. The world right now is deeply, deeply combating so many ailments, and we know as a society that when we come together, we can make real, permanent change.”

She won the award for her work on “Cats: The Jellicle Ball” and was also nominated for best costume design of a play for “Liberation.”

In addition to her stage work, Queen Jean is the founder of Black Trans Liberation, an organization that supports trans and gender-nonconforming people in New York City.

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Madonna turns Times Square into massive dance floor

Pop icon celebrates Pride month with surprise performance

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Madonna surprised New York fans with an impromptu show in Times Square. (Photo by Alex Antonioni; courtesy Warner Records)


Pop icon Madonna celebrated Pride month with a pop-up performance in New York City’s Times Square on Thursday to the delight of 50,000 fans.

She performed for about 15 minutes high above street level, including several songs from her new album “Confessions II” due on July 3, along with a trio of songs from the first “Confessions on a Dance Floor.”

In addition to the brand new “Love Sensation,” she performed “I Feel So Free” and “Bring Your Love,” plus “Hung Up,” “Get Together” and “I Love New York.” She wished the crowd a happy Pride season; the event was shared with audiences through Grindr’s first-ever livestream. 

Madonna performs in Times Square on Thursday. (Photo by Alex Antonioni; courtesy Warner Records)
(Photo by Ricardo Gomes; courtesy Warner Records)

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Gallup finds LGBTQ support among Americans is dropping

Marriage equality support lowest since 2016

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Progress rainbow flag and trans flag flying. (Washington Blade Photo by Michael Key)

Gallup, one of the leading organizations in public opinion polling, has found that LGBTQ support among Americans is dropping.

The poll, whose data was collected using Gallup’s annual Values and Beliefs survey, was conducted in May and was published on Wednesday. The data was collected through telephone interviews from a sample of more than 1,000 adults living in all 50 states and D.C. using random digit dialing. 

It highlights declining attitudes surrounding LGBTQ issues in multiple areas — from support for same-sex marriage to views on gender identity and the morality of one’s sexuality.

One of the most striking findings was that support for marriage equality fell six points from its 2022-2023 high.

The survey also found that 62 percent of Americans view gay and lesbian relations as morally acceptable, the lowest level since 2016 just after same-sex marriage was legalized nationwide by the U.S. Supreme Court. 

One newer question on the poll found that the perceived morality of changing one’s gender has dropped eight points since 2021, indicating the American public is less supportive of transgender people.

New data from Gallup shows a decline in LGBTQ support. (Graph courtesy of Gallup)

The data attributes much of the decline to shifting Republican views alongside the party itself. Conservative leaders have pushed back against diversity, equity, and inclusion programs that were intended to foster greater acceptance of LGBTQ people and other historically disadvantaged groups.

President Donald Trump has been a guiding force behind waves of anti-LGBTQ sentiment, particularly when it comes to trans rights. The president has enacted multiple executive orders, including Executive Order 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which mandates that gender be defined by one’s sex assigned at birth. He also signed Executive Order 14183, “Prioritizing Military Excellence and Readiness,” which barred qualified trans applicants from joining the military and led to the removal of trans service members already serving in the armed forces.

Additionally, he signed Executive Order 14201, “Keeping Men Out of Women’s Sports,” which prohibits trans female athletes from participating on women’s and girls’ sports teams.

In February, Gallup found that an estimated 9 percent of Americans identified as part of the LGBTQ community in some form.

The organization also found that 23 percent of adults under age 30 identify as LGBTQ, compared with 10 percent of those ages 30 to 49 and 3 percent or less among those ages 50 and older.

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