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Nev. federal court rules against same-sex marriage

Jones determines heterosexuals might not marry if gay couples can

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A district judge in Nevada upheld the state’s same-sex marriage ban

A federal court in Nevada has ruled against allowing same-sex couples to marry on the basis that they can’t procreate and gay people aren’t a politically powerless class.

In a 41-page ruling, U.S. District Judge Robert Jones, an appointee of former President George W. Bush, granted summary judgment in favor of the state of Nevada against claims its prohibition of same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

Among the reasons why Jones, a Mormon who attended Brigham Young University, finds gay couples lack a constitutional right to marry is a rational basis for the government to preclude couples who can’t bear children from marrying:

“Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman.”

Moreover, Jones determines that straight couples may be disinclined to marry if same-sex couples were allowed to enter into the same institution, which would result in additional societal problems:

“Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”

The ruling was made in the case of Sevick v. Sandoval, which Lambda Legal filed on behalf of eight plaintiff couples in Nevada. The lead plaintiffs are Beverly Sevcik and Mary Baranovich of Carson City, who’ve been together for nearly 41 years. The plaintiffs contend Nevada’s law is unconstitutional because excluding of same-sex couples from marriage while relegating them to domestic partnerships violates their right to equal treatment under the U.S. Constitution.

Tara Borelli, a Lambda staff attorney, said the district court decision is “not the end of this fight” and vowed to appeal the decision to the U.S. Ninth Circuit Court of Appeals.

“This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can,” Borelli said. “Not only is this not true, but it is settled law that the government is not allowed to cater to private biases – which is all that imagining that  ‘some couples won’t join this club if those people are admitted’ amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.”

The ruling was filed on Monday, but had only come to the attention to the media on Thursday because the court made no previous announcement it had issued a decision.

Notably, Jones determines that Baker v. Nelson, a 1972 case on same-sex marriage that the U.S. Supreme Court refused to hear for want of federal question, should serve as precedent, even though the case is 40 years old, because it relied on a equal protection claim.

At the same time, Jones says Perry v. Brown, a more recent case against California’s Proposition 8 in which same-sex marriage was found unconstitutional, shouldn’t have bearing on Nevada because that case involved taking away marriage rights that already existed in the Golden State as opposed to the question of whether same-sex couples have a constitutional right to marry when a domestic partnership system exists.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the treatment of the Perry decision is the “most interesting thing” about the ruling because it shows the ramifications of the limited scope of the Ninth Circuit’s decision against Prop 8.

“The Ninth Circuit frames Perry very narrowly, partly, I think, in an attempt to convince the Supreme Court that they don’t need to get involved, and now we’re seeing the ramifications of that, which is this court within Ninth Circuit interpreting Perry so as not to apply,” he said.

It’s not the first time in recent history that a federal court has upheld a statute against same-sex marriage. In August, U.S. District Judge Alan Kay ruled Hawaii’s ban on same-sex marriage is constitutional using much of the same reasoning found in Jones’ decision.

In addition to ruling that Nevada’s law against same-sex marriage is constitutional on a rational basis standard of review, Jones also disputes the idea that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional. That view has been articulated by President Obama in his decision that the Defense of Marriage Act is unconstitutional and the U.S. Second Circuit Court of Appeals in its ruling against DOMA.

For starters, Jones dismisses the idea that gays and lesbians are politically powerless — a condition necessary for a class to be considered eligible for heightened scrutiny — because of the gains made by the LGBT community in recent years:

Homosexuals serve openly in federal and state political offices. The president of the United States has announced his personal acceptance of the concept of same-sex marriage and the announcement was widely applauded in the national media. Not only has the president expressed his moral support, he has directed the attorney general not to defend against legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his official capacity to defend a democratically enacted federal law in court based upon his personal political disagreements. That the homosexual-rights lobby has achieved this indicates that the group has great political power.

Jones also denies that gays and lesbians are politically powerless on the basis of the victories for same-sex marriage that were seen on Election Day:

At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Not mentioned in the Jones ruling is the passage of a state constitutional amendment in North Carolina just months ago that defined marriage as a union between one man and one woman.

NeJaime said the rejection of heightened scrutiny is also noteworthy, although he’s skeptical about the conclusions the court reaches in this assessment.

“I think some of those conclusions strike me as a little bit shaky — the idea that now that same-sex marriage has a few ballot victories contributes to the idea that gays and lesbians have political power, and the conclusion that the history of discrimination against gays and lesbians does not rise to the level that would lead to the heightened scrutiny findings,” NeJaime said. “I think those kinds of conclusions would be susceptible to being overruled if the Ninth Circuit were to take this case.”

The ruling comes to light on the eve before the U.S. Supreme Court is set to consider whether to take up litigation challenging DOMA and Prop 8.

Nan Hunter, a lesbian law professor at Georgetown University, said the arguments against gays and lesbians being a politically powerless class may be preview of arguments to come before the Supreme Court.

“Perhaps most interesting is the extent to which this judge’s analysis focuses on the political powerlessness question, finding that gay people are too well regarded in majoritarian legislatures to justify judicial invalidation of laws that emerge from those legislatures,” Hunter said. “I think that this aspect of Equal Protection review will be a major focus in the Supreme Court, assuming that it grants review in any of the gay-related cases, and this decision provides a good preview of what the opponents of gay marriage will argue.”

NeJaime speculated the Nevada decision may encourage justices not to take up the Prop 8 case, allowing same-sex marriage to return to California.

“I don’t necessarily think it would have a direct impact, but I think the court would know the Perry has been interpreted very narrowly by another court in the Ninth Circuit, which might bolster support for the idea that they don’t have to take Perry,” NeJaime said.

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LGBTQ community calls out Radio Korea over host’s homophobic comments

Station acknowledged controversy, but skirted accountability

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On Nov. 21st, Radio Korea CEO Michael Kim made an official video statement addressing the Nov. 3rd program. (Screen capture via Radio Korea/YouTube)

On Monday, Nov. 3, Radio Korea aired its regular morning talk show program, where one of its hosts, Julie An, discussed her lack of support for the LGBTQ community, citing her religious beliefs. She also went on to comment that gay people spread HIV and AIDS, and that conversation therapy — which has been linked to PTSD, suicidality, and depression — is a viable practice. Clips of this have since been taken down.

Radio Korea offers Korean language programming to engage local Korean American and Korean immigrant community members. Its reach is broad, as Los Angeles is home to the largest Korean population in the U.S, with over 300,000 residents. As An’s words echoed through the station’s airwaves, queer Korean community members took to social media to voice their concern, hurt, and anger.  

In a now-deleted Instagram post, attorney, activist, and former congressional candidate David Yung Ho Kim demanded accountability from the station. Writer and entertainer Nathan Ramos-Park made videos calling out Radio Korea and An, stating that her comments “embolden” people with misinformation, which has the ability to perpetuate “violence against queer people.”

Community health professional Gavin Kwon also worries about how comments like An’s increase stigma within the Korean immigrant community, which could lead to increased discrimination against queer people and their willingness to seek health care.  

Kwon, who works at a local clinic in Koreatown, told the Los Angeles Blade that comments like An’s prescribe being gay or queer as a “moral failure,” and that this commonly-held belief within the Korean immigrant community, particularly in older generations, strengthens the reticence and avoidance clients hold onto when asked about their gender or sexual orientation. 

“When you stigmatize a group, people don’t avoid the disease — they avoid care,” Kwon explained. “They avoid getting tested, avoid disclosing their status, and avoid talking openly with providers. Stigma pushes people into silence, and silence is the worst possible environment for managing any infectious disease.”

For weeks, Radio Korea did not offer a direct response to the public criticism. Its Instagram feed continued to be updated with shorts, featuring clips of its various hosts — including An. 

On Friday, Radio Korea CEO Michael Kim released an official statement on the station’s YouTube page. In this video, Michael Kim stated that An’s comments “included factual inaccuracies” and that the station “does not endorse or share the personal opinions expressed by individual hosts.” Michael Kim also stated that Radio Korea “welcomes members of the LGBT community to share their perspectives” in order to deepen understanding through dialogue. 

Afterwards, Michael Kim continued that though he acknowledges the “pain” felt by queer community members, he concluded: “I don’t think Radio Korea needs to apologize for what was said any more than Netflix should apologize for what Dave Chappelle says, or any more than Instagram or TikTok should apologize for what people say on their platforms.” 

Michael then offered a justification that An’s statements were “not part of a news report,” and that he was “disappointed” that David Yung Ho Kim, specifically, had been vocal about An’s comments. Michael Kim stated that he was the first person to interview David Yung Ho Kim in 2020 during his congressional campaign, and that he had provided the candidate a platform and opportunity to educate listeners about politics. 

“After all these years, the support Radio Korea has given him,” said Kim, “the support I personally gave him, even the support from other Radio Korea members who donated or even volunteered for him — he dishonestly tried to portray Radio Korea as being an anti-gay organization.”

Michael Kim went on to criticize David Yung Ho Kim’s purported “hurry to condemn others,” and also questioned if David has disowned his father, who he states is a pastor. “What kind of person is David Kim, and is this the kind of person we want in Congress?” Michael Kim asked viewers, noting that Koreatown is “only about three miles from Hollywood, and some people just like to perform.” 

At the end of the video, Michael Kim stated that his duty is to guard the legacy of the station. “My responsibility is to protect what was built before me and ensure that Radio Korea continues serving this community long after today’s momentary controversies disappear,” he said. 

For community members and advocates, this response was unsatisfactory. “The overall tone of the statement felt more defensive than accountable,” Kwon wrote to the Blade. “Instead of a sincere apology to the LGBTQ+ community that was harmed, the message shifts into personal grievances, political dynamics, and side explanations that don’t belong in an official response.”

Michael Kim’s portrayal of the criticism and calls to action by community members as a “momentary controversy” paints a clearer picture of the station’s stance — that the hurt felt and expressed by its queer community members is something that will simply pass until it is forgotten. An continues to be platformed at Radio Korea, and was posted on the station’s social media channels as recently as yesterday. The station has not outlined any other action since Michael Kim’s statement. 

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U.S. Military/Pentagon

Pentagon moves to break with Boy Scouts over LGBTQ and gender inclusion

Leaked memo shows Hegseth rejecting Scouting America’s shift toward broader inclusion

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Scouts for Equality march in the 2015 Capital Pride Parade. (Washington Blade file photo by Michael Key)

The Pentagon is preparing to sever its longstanding partnership with the Boy Scouts of America, now known as Scouting America.

In a draft memo to Congress obtained by NPR, Defense Secretary Pete Hegseth criticizes the organization for being “genderless” and for promoting diversity, equity, and inclusion.

“The organization once endorsed by President Theodore Roosevelt no longer supports the future of American boys,” Hegseth wrote, according to Defense Department sources.

Girls have been eligible to join Cub Scouts (grades K–5) since 2018, and since 2019 they have been able to join Scouts BSA troops and earn the organization’s highest rank of Eagle Scout.

A statement on the Scouting America website says the shift toward including girls stemmed from “an expanding demand to join the Boy Scouts” and a commitment to inclusivity. “Throughout the late 20th and early 21st centuries, it has undergone significant changes to become more inclusive of the adult staff and volunteers that drive its programming as well as of scouts and their families,” the organization says.

Part of that broader push included lifting its ban on openly gay members in 2014 and on openly gay adult leaders in 2015.

Once the Pentagon finalizes the break, the U.S. military will no longer provide medical and logistical support to the National Jamboree, the massive annual gathering of scouts in West Virginia that typically draws about 20,000 participants. The memo also states that the military will no longer allow scout troops to meet on U.S. or overseas installations, where many bases host active scout programs.

Hegseth’s memo outlines several justifications for the decision, arguing that Scouting America has strayed from its original mission to “cultivate masculine values” by fostering “gender confusion.” It also cites global conflicts and tightening defense budgets, claiming that deploying troops, doctors and vehicles to a 10-day youth event would “harm national security” by diverting resources from border operations and homeland defense.

“Scouting America has undergone a significant transformation,” the memo states. “It is no longer a meritocracy which holds its members accountable to meet high standards.”

The Pentagon declined NPR’s request for comment. A “War Department official” told the outlet that the memo was a “leaked document that we cannot authenticate and that may be pre-decisional.”

The leaked memo comes roughly one month after nearly every major journalism organization walked out of the Pentagon in protest of new rules requiring reporters to publish only “official” documents released by the department — effectively banning the use of leaked or unpublished materials.

President Donald Trump, who serves as the honorary head of Scouting America by virtue of his office, praised the Jamboree audience during his 2017 visit to West Virginia. “The United States has no better citizens than its Boy Scouts. No better,” he said, noting that 10 members of his Cabinet were former Scouts.

Hegseth was never a scout. He has said he grew up in a church-based youth group focused on memorizing Bible verses. As a Fox News host last year, he criticized the Scouts for changing their name and admitting girls.

“The Boy Scouts has been cratering itself for quite some time,” Hegseth said. “This is an institution the left didn’t control. They didn’t want to improve it. They wanted to destroy it or dilute it into something that stood for nothing.”

NBC News first reported in April that the Pentagon was considering ending the partnership, citing sources familiar with the discussions. In a statement to NBC at the time, Pentagon spokesman Sean Parnell said, “Secretary Hegseth and his Public Affairs team thoroughly review partnerships and engagements to ensure they align with the President’s agenda and advance our mission.”

The Scouting America organization has has long played a role in military recruiting. According to numbers provided by Scouting America, many as 20 percent of cadets and midshipmen at the various service academies are Eagle Scouts. Enlistees who have earned the Eagle rank also receive advanced entry-level rank and higher pay — a practice that would end under the proposed changes.

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The White House

Trans workers take White House to court over bathroom policy

Federal lawsuit filed Thursday

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Protesters outside of House Speaker Mike Johnson's (R-La.) office in the Cannon House Office Building last year protesting a similar bathroom ban. (Washington Blade photo by Christopher Kane)

Democracy Forward and the American Civil Liberties Union, two organizations focused on protecting Americans’ constitutional rights, filed a class-action lawsuit Thursday in federal court challenging the Trump-Vance administration’s bathroom ban policies.

The lawsuit, filed on behalf of LeAnne Withrow, a civilian employee of the Illinois National Guard, challenges the administration’s policy prohibiting transgender and intersex federal employees from using restrooms aligned with their gender. The policy claims that allowing trans people in bathrooms would “deprive [women assigned female at birth] of their dignity, safety, and well-being.”

The lawsuit responds to the executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” signed by President Donald Trump on his first day in office. It alleges that the order and its implementation violate Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment. In 2020, the U.S. Supreme Court ruled 6-3 that Title VII protects trans workers from discrimination based on sex.

Since its issuance, the executive order has faced widespread backlash from constitutional rights and LGBTQ advocacy groups for discriminating against trans and intersex people.

The lawsuit asserts that Withrow, along with numerous other trans and intersex federal employees, is forced to choose between performing her duties and being allowed to use the restroom safely.

“There is no credible evidence that allowing transgender people access to restrooms aligning with their gender identity jeopardizes the safety or privacy of non-transgender users,” the lawsuit states, directly challenging claims of safety risks.

Withrow detailed the daily impact of the policy in her statement included in the lawsuit.

“I want to help soldiers, families, veterans — and then I want to go home at the end of the day. At some point in between, I will probably need to use the bathroom,” she said.

The filing notes that Withrow takes extreme measures to avoid using the restroom, which the Cleveland Clinic reports most people need to use anywhere from 1–15 times per day depending on hydration.

“Ms. Withrow almost never eats breakfast, rarely eats lunch, and drinks less than the equivalent of one 17 oz. bottle of water at work on most days.”

In addition to withholding food and water, the policy subjects her to ongoing stress and fear:

“Ms. Withrow would feel unsafe, humiliated, and degraded using a men’s restroom … Individuals seeing her enter the men’s restroom might try to prevent her from doing so or physically harm her,” the lawsuit states. “The actions of defendants have caused Ms. Withrow to suffer physical and emotional distress and have limited her ability to effectively perform her job.”

“No one should have to choose between their career in service and their own dignity,” Withrow added. “I bring respect and honor to the work I do to support military families, and I hope the court will restore dignity to transgender people like me who serve this country every day.”

Withrow is a lead Military and Family Readiness Specialist and civilian employee of the Illinois National Guard. Previously, she served as a staff sergeant and has received multiple commendations, including the Illinois National Guard Abraham Lincoln Medal of Freedom.

The lawsuit cites the American Medical Association, the largest national association of physicians, which has stated that policies excluding trans individuals from facilities consistent with their gender identity have harmful effects on health, safety, and well-being.

“Policies excluding transgender individuals from facilities consistent with their gender identity have detrimental effects on the health, safety and well-being of those individuals,” the lawsuit states on page 32.

Advocates have condemned the policy since its signing in January and continue to push back against the administration. Leaders from ACLU-D.C., ACLU of Illinois, and Democracy Forward all provided comments on the lawsuit and the ongoing fight for trans rights.

“We cannot let the Trump administration target transgender people in the federal government or in public life,” said ACLU-D.C. Senior Staff Attorney Michael Perloff. “An executive order micromanaging which bathroom civil servants use is discrimination, plain and simple, and must be stopped.”

“It is absurd that in her home state of Illinois, LeAnne can use any other restroom consistent with her gender — other than the ones controlled by the federal government,” said Michelle Garcia, deputy legal director at the ACLU of Illinois. “The Trump administration’s reckless policies are discriminatory and must be reversed.”

“This policy is hateful bigotry aimed at denying hardworking federal employees their basic dignity simply because they are transgender,” said Kaitlyn Golden, senior counsel at Democracy Forward. “It is only because of brave individuals like LeAnne that we can push back against this injustice. Democracy Forward is honored to work with our partners in this case and is eager to defeat this insidious effort to discriminate against transgender federal workers.”

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