National
Court declares Prop 8 unconstitutional
Scope of ruling limited to California; appeal planned
In a two-to-one decision, a panel of the Ninth Circuit Court of Appeals has ruled that Proposition 8 is unconstitutional in a federal case challenging California’s marriage ban.
The opinion, authored by Judge Stephen Reinhardt, affirms Judge Vaughn Walker’s 2010 ruling that the law passed by California voters at the ballot violates the Equal Protection clause of the 14th Amendment to the U.S. Constitution because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
The court also rejected the argument that Judge Walker should have recused himself from the case because of his sexual orientation and relationship status.
Legal experts began to weigh in on the meaning of the decision immediately.
“I think the biggest story is how narrow [the majority decision] really is,” Douglas NeJaime, associate professor at Loyola Law School, Los Angeles, told the Blade Tuesday. “Which in some ways I think that might disappoint some folks who were hoping it would expand to more states, but I think in terms of setting it up for a Supreme Court review — either the Supreme Court not taking it, or approving it — for supporters of same-sex marriage, this is actually the most strategically sound way for the case to proceed.”
Legal experts agree that the decision represents a big win for same-sex couples in California, even though it was a narrow decision limited to California. The Ninth Circuit encompasses multiple Western states and some Prop 8 opponents had hoped the court’s decision would impact a wider swath of the country.
“The decision is a very narrow decision striking down Proposition 8 on grounds that are very unique to California,” NeJaime told the Blade. “What this doesn’t do is directly affect the laws of the majority of states that don’t allow same-sex couples to marry. It doesn’t announce that same-sex couples have a right to marry under the federal Constitution, and it doesn’t engage the question of whether sexual orientation-based classifications should be subjected to some heightened form of scrutiny under the federal Constitution. So it’s a very narrow ruling that only directly impacts the law in California.”
If left to stand, however, what the decision would do, NeJaime says, is allow same-sex couples to marry in California.
“What you would likely have happen is a bunch of other people would file cases in other states, and you would have more litigation, and the states that have a system most directly related to the court’s ruling here, would be states that have domestic partnership or civil union statues that allow same-sex couples to have all of the same rights and benefits of different-sex couples,” NeJaime said. “So Washington, Nevada, Oregon, Hawaii, Delaware, Illinois, Rhode Island, New Jersey, those states’ laws would probably be the first to be challenged.”
Though the court sided with the plaintiffs, the ruling is stayed until the decision goes into effect, in what is called a “mandate.” This means that same-sex couples will not be able to marry in California until the Ninth Circuit lifts the stay, the Supreme Court decides to uphold the ruling or pass on the case, or the state voters decide to overturn the law at the ballot.
Proponents of Prop 8 now have 15 days to ask for what is called an ‘en banc’ decision by a larger random panel of 11 of the court’s 24 judges — a crap shoot for proponents of the law who could not guarantee the judges assigned to the panel are sympathetic. Proponents also have 90 days to appeal directly to the Supreme Court, if they so choose to skip the ‘en banc’ rehearing.
Though at the onset of the case, gay rights advocates were excited about the prospect of the case advancing to the Supreme Court where they hoped it could be used to strike down same-sex marriage bans across the nation, some legal experts say it’s not so simple.
“Everyone thought this case was going to Supreme Court, but given how narrow this ruling is, the Supreme Court might very likely just not take the case,” NeJaime told the Blade. “The Supreme Court does not have to take the case. And they might decide ‘this only affects California. We’ll let it stand. And we’ll take a case down the road.’”
“If they take the case, then the decision by the Ninth Circuit has really set it up so that the Supreme Court can affirm the decision, meaning strike down Proposition 8, by not having to reach very far.”
NeJaime said that the Reinhardt opinion, much like the Walker opinion, borrows heavily from the case law history of swing vote Supreme Court Justice Anthony Kennedy, whom NeJaime says the opinion “aims” for. Kennedy wrote the majority opinion in the Romer v. Evans case that struck down an anti-gay constitutional amendment in Colorado’s Constitution nearly 20 years ago, but that doesn’t mean the justice will help the plaintiffs change the law across the land.
“So basically because its a narrow ruling, and because the court applied the lowest form of scrutiny for equal protection purposes, the Supreme Court could affirm the decision without having to expand much on its current case law, and without having to comment on the laws of the other states. It could issue a ruling that would allow same-sex marriage in California but doesn’t affect anything else directly. That’s the preferred course of the court, is to issue narrow, incremental, case-by-case rulings, rather than broad sweeping rulings, that invalidate the majority of states’ laws in one decision.”
In 2008, more than 18,000 same-sex couples were married in California during a brief period following the decision by the California Supreme Court that barring same-sex couples from marriage violated the California Constitution. The weddings were halted by the November 2008 voter-enacted law, but the court ruled that the 18,000 marriages performed should remain valid.
For now, same-sex couples in California who did not get married during the narrow 2008 window are in legal limbo, waiting for the stay on the original Judge Walker decision to be lifted once and for all, but that could take some time.
“The mandate would issue seven days after the time for filing a petition for rehearing expires, or seven days after the denial of a petition for a rehearing,” NeJaime told the Blade. “They have 14 days to file the petition, so technically, it could issue as soon as 21 days. But more likely it will be later than that, and if they take it for a rehearing, it would be even later than that, so the soonest would be within three weeks.
“But in the meantime, there’s probably going to be additional motions to stay, so that doesn’t mean that once the mandate is issued, same-sex couples can marry,” NeJaime added.
Despite the continued wait, LGBT rights organizations were quick to hail the victory.
“Today’s decision heartens and gives hope to the 15,698 loving couples in California who are raising more than 30,000 children,” said Family Equality Council Executive Director Jennifer Chrisler. “They, like all Americans, understand that while love makes a family, there is no denying that marriage strengthens it. These parents have raised their children to love their country, support their friends and treat their neighbors with respect. Now they only ask for the fundamental American freedom to demonstrate their love and commitment to their family through marriage.”
California-based Courage Campaign also weighed in minutes after the announcement of the ruling upholding Judge Walker’s decision.
“The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign.
Even the LGBT military group Servicemembers Legal Defense Network weighed in with a statement by outgoing executive director and Army veteran Aubrey Sarvis.
“SLDN welcomes today’s important ruling by the Ninth Circuit affirming the lower court decision that Proposition 8 is unconstitutional; indeed, fairness and equality have carried the day,” said Sarvis. “This victory strengthens our case on behalf of married gay and lesbian service members and veterans as we seek to gain equal recognition, support, and benefits for them and their families. This is an historic win for supporters of full equality in the military and in our country.”
“We’re thrilled that today the Ninth Circuit reaffirmed that under our Constitution, all loving couples must be allowed to marry, regardless of the gender of either partner,” said Transgender Law Center Executive Director Masen Davis. “The state should not be in the business of policing who can marry based on gender. I’m optimistic that full equality for all our families is on the horizon.”
U.S. Supreme Court
Supreme Court declines to hear case over drag show at Texas university
Students argue First Amendment protects performance
The U.S. Supreme Court on Friday declined to hear a First Amendment case over a public university president’s refusal to allow an LGBTQ student group to host a drag show on campus.
The group’s application was denied without the justices providing their reasoning or issuing dissenting opinions, as is custom for such requests for emergency review.
When plaintiffs sought to organize the drag performance to raise money for suicide prevention in March 2023, West Texas A&M University President Walter Wendler cancelled the event, citing the Bible and other religious texts.
The students sued, arguing the move constituted prior restraint and viewpoint-based discrimination, in violation of the First Amendment. Wendler had called drag shows “derisive, divisive and demoralizing misogyny,” adding that “a harmless drag show” was “not possible.”
The notoriously conservative Judge Matthew Kacsmaryk, who former President Donald Trump appointed to the U.S. District Court for the Northern District of Texas, ruled against the plaintiffs in September, writing that “it is not clearly established that all drag shows are inherently expressive.”
Kacsmaryk further argued that the High Court’s precedent-setting opinions protecting stage performances and establishing that “speech may not be banned on the ground that it expresses ideas that offend” was inconsistent with constitutional interpretation based on “text, history and tradition.”
Plaintiffs appealed to the 5th U.S. Circuit Court of Appeals, which is by far the most conservative of the nation’s 12 appellate circuit courts. They sought emergency review by the Supreme Court because the 5th Circuit refused to fast-track their case, so arguments were scheduled to begin after the date of their drag show.
Federal Government
EXCLUSIVE: USAID LGBTQ coordinator visits Uganda
Jay Gilliam met with activists, community members from Feb. 19-27
U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam last month traveled to Uganda.
Gilliam was in the country from Feb. 19-27. He visited Kampala, the Ugandan capital, and the nearby city of Jinja.
Gilliam met with LGBTQ activists who discussed the impact of the Anti-Homosexuality Act, a law with a death penalty provision for “aggravated homosexuality” that President Yoweri Museveni signed last May. Gilliam also sat down with USAID staffers.
Gilliam on Wednesday during an exclusive interview with the Washington Blade did not identify the specific activists and organizations with whom he met “out of protection.”
“I really wanted to meet with community members and understand the impacts on them,” he said.
Consensual same-sex sexual relations in Uganda were already criminalized before Museveni signed the Anti-Homosexuality Act. Gilliam told the Blade he spoke with a person who said authorities arrested them at a community meeting for mental health and psychosocial support “under false pretenses of engaging in same-sex relations and caught in a video that purportedly showed him.”
The person, according to Gilliam, said authorities outed them and drove them around the town in which they were arrested in order to humiliate them. Gilliam told the Blade that prisoners and guards beat them, subjected them to so-called anal exams and denied them access to antiretroviral drugs.
“They were told that you are not even a human being. From here on you are no longer living, just dead,” recalled Gilliam.
“I just can’t imagine how difficult it is for someone to be able to live through something like that and being released and having ongoing needs for personal security, having to be relocated and getting support for that and lots of other personal issues and trauma,” added Gilliam.
Gilliam said activists shared stories of landlords and hotel owners evicting LGBTQ people and advocacy groups from their properties. Gilliam told the Blade they “purport that they don’t want to run afoul of” the Anti-Homosexuality Act.
“These evictions really exacerbate the needs from the community in terms of relocation and temporary shelter and just the trauma of being kicked out of your home, being kicked out of your village and having to find a place to stay at a moment’s notice, knowing that you’re also trying to escape harm and harassment from neighbors and community members,” he said.
Gilliam also noted the Anti-Homosexuality Act has impacted community members in different ways.
Reported cases of violence and eviction, for example, are higher among gay men and transgender women. Gilliam noted lesbian, bisexual and queer women and trans men face intimate partner violence, are forced into marriages, endure corrective rape and lose custody of their children when they are outed. He said these community members are also unable to inherit land, cannot control their own finances and face employment discrimination because of their sexual orientation or gender identity.
US sanctioned Ugandan officials over Anti-Homosexuality Act
The U.S imposed visa restrictions on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announced the suspension of new loans to Uganda.
The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act “further increases restrictions on human rights, to include restrictions on freedoms of expression and peaceful assembly and exacerbates issues regarding the respect for leases and employment contracts.” The White House has also removed Uganda from a program that allows sub-Saharan African countries to trade duty-free with the U.S. and has issued a business advisory for the country over the Anti-Homosexuality Act.
Secretary of State Antony Blinken on Dec. 4, 2023, announced sanctions against current and former Ugandan officials who committed human rights abuses against LGBTQ people and other groups. Media reports this week indicate the U.S. denied MP Sarah Achieng Opendi a visa that would have allowed her to travel to New York in order to attend the annual U.N. Commission on the Status of Women.
Museveni, for his part, has criticized the U.S. and other Western countries’ response to the Anti-Homosexuality Act.
Gilliam noted authorities have arrested and charged Ugandans under the law.
Two men on motorcycles on Jan. 3 stabbed Steven Kabuye, co-executive director of Coloured Voice Truth to LGBTQ Uganda, outside his home while he was going to work. The incident took place months after Museveni attended Uganda’s National Prayer Breakfast at which U.S. Rep. Tim Walberg (R-Mich.) spoke and defended the Anti-Homosexuality Act.
The State Department condemned the attack that Kabuye blamed on politicians and religious leaders who are stoking anti-LGBTQ sentiments in Uganda. Gilliam did not meet with Ugandan government officials while he was in the country.
“We in the U.S. government have already made it clear our stance with government officials on how we feel about the AHA, as well as broader human rights concerns in country,” said Gilliam. “That’s been communicated from the very highest levels.”
The Uganda’s Constitutional Court last Dec. 18 heard arguments in a lawsuit that challenges the Anti-Homosexuality Act. It is unclear when a ruling in the case will take place, but Gilliam said LGBTQ Ugandans with whom he met described the law “as just one moment.”
“Obviously there is lots of work that has been done, that continues to be done to respond to this moment,” he told the Blade. “They know that there’s going to be a lot of work that needs to continue to really address a lot of the root causes and to really back humanity to the community.”
Gilliam further noted it will “take some years to recover from the damage of 2023 and the AHA (Anti-Homosexuality Act) there.” He added activists are “already laying down the groundwork for what that work looks like” in terms of finding MPs, religious leaders, human rights activists and family members who may become allies.
“Those types of allyships are going to be key to building back the community and to continue the resiliency of the movement,” said Gilliam.
Texas
Pornhub blocks Texas accessing site over age verification law
Court battle forced statute to take effect
Aylo (formerly MindGeek) the largest global adult online entertainment conglomerate, owned by Canadian private equity firm Ethical Capital Partners, has restricted access to its platforms including its flagship Pornhub in Texas after a court battle forces the state’s age verification law to take effect.
Texas Republican Attorney General Ken Paxton had appealed a U.S. District Court decision that enjoined him from enforcing House Bill 1181. Paxton and others argued that purveyors of obscene materials online needed to institute reasonable age-verification measures to safeguard children from pornography.
A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.
“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the three judge panel of the 5th Circuit explained. “Therefore, the age-verification requirement does not violate the First Amendment.”
While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower court’s injunction against a separate section of the law that would require pornography websites to display a health warning on their landing page and all advertisements.
The Houston Chronicle reported people who go to the site are now greeted with a long message from the company railing against the legal change as “ineffective, haphazard, and dangerous.” The company calls for age verification by the makers of devices that let people on the internet, instead of individual websites.
Age verification legislation was enacted in several states in 2023 in addition to Texas, including North Carolina, Montana, Arkansas, Louisiana, Mississippi, Utah and Virginia.
The new laws require users to provide digital confirmation via a certified approved third party vendor like London-based digital identity company Yoti. The other possibility would be a state approved digital ID such as the California DMV’s Wallet app, which contains a mobile driver’s license.
Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the state’s digital ID system, known as LA Wallet. The law passed in 2022 subjects adult websites to damage lawsuits and state civil penalties as high as $5,000 a day if they fail to verify that users are at least 18 years old by requiring the use of digitized, state-issued driver’s licenses or other methods.
The Associated Press reported this past October that an adult entertainment group’s lawsuit against a Louisiana law requiring sexually explicit websites to verify the ages of their viewers was dismissed by U.S. District Judge Susie Morgan in New Orleans.
Potential or existing Pornhub users in North Carolina and Montana are directed to a video that features adult film star Cherie DeVille, who recites a message also written under the video.
“As you may know, your elected officials in your state are requiring us to verify your age before allowing you access to our website. While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users and in fact, will put children and your privacy at risk.”
“Mandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,” the statement continues. “As we’ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.”
“Until a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]” the message ends with.
The company previously blocked Utah on May 7, 2023. CNN reported at the time:
Affected users are shown a message expressing opposition to Senate Bill 287, the Utah law signed by Gov. Spencer Cox in March that creates liability for porn sites that make their content available to people below the age of 18.
“As you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,” the message said. “While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk.”
Courthouse News reported that after Virginia’s bill was passed in June, state Sen. L. Louise Lucas, a Democrat, criticized the state for not creating a system for age verification, and instead leaving it up to websites to manage the process, citing security risks.
“We passed a bill during this session to protect children from online porn. However the executive branch had an obligation to create a system for age verification,” Lucas said on X, formerly Twitter. “We will continue our work to keep pornography out of the hands of minors … but we will also work to ensure that this Governor’s error does not put the privacy of Virginians at further risk.”
Beyond the U.S. in the European Union, Pornhub and two more of the world’s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EU’s Digital Services Act.
According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as “very large online platforms” subject to more stringent controls under the Digital Services Act because they each have 45 million average monthly users, according to the European Commission, the EU’s executive branch.
They are the first porn sites to be targeted by the sweeping Digital Services Act, which imposes tough obligations to keep users safe from illegal content and dodgy products, the Associated Press reported last month.
In addition to the adult entertainment websites, any violations are punishable by fines of up to 6% of global revenue or even a ban on operating in the EU. Some 19 online platforms and search engines have already been identified for stricter scrutiny under the DSA, including TikTok, Amazon, Facebook, Instagram, Google and more.
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