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House GOP cost cap for DOMA defense reaches $3 million

Agreement reached in secret on first day of 113th Congres

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John Boehner, Speaker of the House, GOP, Republican, gay news, Washington Blade
John Boehner, Speaker of the House, GOP, Republican, gay news, Washington Blade

U.S. House Speaker, John Boehner has directed the House to defend DOMA in court (Washington Blade file photo by Michael Key)

House Republicans secretly agreed to raise the cost for defending the Defense of Marriage Act in court to $3 million in the first week that the 113th Congress was sworn into office, according to a copy of the contract obtained by the Washington Blade on Tuesday.

The contract, signed by new House Committee on Administration Chair Candace Miller (R-Mich.), allows for expenses to pay for outside counsel to defend DOMA in court to reach $3 million ā€” a full $1 million more than the previous cost cap agreed to in September. In a statement this week, House Democrats said the agreement was reached in secret and they weren’t aware of it until late Monday.

“The General Counsel agrees to pay the Contractor for all services to be rendered pursuant to this Agreement a sum not to exceed $2,750,000.00,” the contract states. “It is further understood and agreed that, effective January 4, 2013, the aforementioned $2,750,000.00 cap may be raised from time to time up to, but not exceeding, $3,000,000, upon written notice of the General Counsel to the Contractor specifying that the General Counsel is legally liable under this Agreement for a specific amount.”

The contact was signed by House General Counsel Kerry Kircher and private attorney Paul Clement, the former Bush administration U.S. solicitor general hired to defend DOMA in court, on Jan. 3, or the first day of the 113th Congress. Miller signed the contract on Jan. 4.

On the same day the attorneys signed the contract,Ā the House approved as part of its rules for the 113th Congress language giving authority for the House Republican-led Bipartisan Legal Advisory Group to defend DOMA in court. The cost cap was raised almost one month after the Supreme Court agreed to take up litigation challenging DOMA, known as Windsor v. United States.

The new agreement means that a cost cap initially set at $500,000 has been raised to $1.5 million, again to $2 million and now most recently to $3 million. Like the previous agreements, the contract states the cost cap may yet again be raised if the parties involved agree to a higher amount in another written contract.

But there’s new language in the contract putting a time limit on the services rendered by Clement; it’ll terminate when litigation is complete or at noon on Jan. 3, 2015 ā€” whichever comes first. The contract also allows for an extension of time limit for parties involved. However, this time limit is almost certainly beyond the time the Supreme Court would reach a decision on DOMA before the end of its term in June.

House Republicans elected to take up defense of DOMA in court in March 2011 after the Obama administration announced it would no longer defend the statute. House Speaker John Boehner (R-Ohio) directed House general counsel to defend the anti-gay law after a party-line vote approving the decision to do so on the five-member House Republican-led Bipartisan Legal Advisory Group.

It’s not the first time that Democrats have accused Republicans of agreeing to raise the cost cap of DOMA in secret. The previous contract that raised the cost cap to $2 million was signed in September, but House Democrats said they didn’t obtain a copy until last month.

House Minority Leader Nancy Pelosi (D-Calif.) and House Minority Whip Steny Hoyer (D-Md.), the two “no” votes on BLAG,Ā responded to news that the cost cap to defend DOMA was yet again raised and raised in secret with consternation.

In a letter to Boehner dated Jan. 15, they jointly renew their call on House Republicans to discontinue defense of DOMA ā€” but also made a new call for Republicans to demonstrate their defense of DOMA more transparently ā€” calling the actions a “clandestine commitment of taxpayer funds” as well as “highly irregular and objectionable.”

“Until Republicans decide to abandon this effort once and for all, we ask you to make your legal plans clear; to make public every contract signed with outside counsel in this case in a timely manner; to declare the total cost of this case to the taxpayers; and to abide by the highest standards of transparency and accountability,” Pelosi and Hoyer wrote.

Pelosi and Hoyer emphasize the House defense of DOMA doesn’t “reflect the will of the House or the consensus of the BLAG.” House Democrats have been filing friend-of-the-court briefs against DOMA before the appellate courts considering the constitutionality of the anti-gay law.

A spokesperson for Boehner deferred questions to the House Committee on Administration, which didn’t immediately respond to a request to comment. It’s the first time over the course House Republican defense of DOMA that Boehner’s has deferred comment and provided a response or simply decline to answer.

Last month, Boehner told the Washington Blade during a news conference when asked he whether supports raising the cost cap to defend DOMA, “If the Justice Department is not going to enforce the law of the land, the Congress will.”

———————–

Below is the full text of the letter from Pelosi and Hoyer:

January 15, 2013
The Honorable John Boehner
Speaker
United States House of Representatives
Washington, D.C.Ā  20515

Dear Speaker Boehner:

As the two Democratic Members of the Bipartisan Legal Advisory Group (BLAG), we wish to strongly reaffirm our objections to the repeated actions by the Republican leadership to secretly and dramatically increase the contract between the House and outside counsel in arguing to uphold the discriminatory Defense of Marriage Act (DOMA) in more than a dozen cases.Ā This is not the first time that House Republicans have made a unilateral decision to raise the ceiling on expenditures for this wasteful litigation that supports a discriminatory statute, without any public discussion or advance notice to Democratic members of the BLAG, Members of the House, or the public.Ā This clandestine commitment of taxpayer funds is highly irregular and objectionable, and it must end now.

Let us be clear: these steps do not reflect the will of the House or the consensus of the BLAG.Ā Democrats do not support any decisions to invest taxpayer funds in defense of an indefensible law.Ā We remain united in our opposition to any effort to preserve, protect, and defend discrimination in our country.

From the start, the Republican-led campaign to defend DOMA has been a practice in futility and a waste of Americansā€™ hard-earned tax dollars.Ā The Republican-appointed, taxpayer-funded legal team has lost in every case.Ā Courts across the nation have stood on the side of justice and equality for all Americans.Ā DOMA is on its way into the dustbin of history.

It would be bad enough if Republicans were losing in court and accepting the result.Ā Yet it is the height of hypocrisy for House Republicans to waste public funds in one breath then claim the mantle of fiscal responsibility in the next.Ā With Republicans willing to take our economy and our country to the brink of default in the name of deficit reduction, there is simply no excuse for any Member of Congress to commit taxpayer dollars to an unnecessary ā€“ and futile ā€“ legal battle.

Until Republicans decide to abandon this effort once and for all, we ask you to make your legal plans clear; to make public every contract signed with outside counsel in this case in a timely manner; to declare the total cost of this case to the taxpayers; and to abide by the highest standards of transparency and accountability.

The Defense of Marriage Act now sits before the Supreme Court.Ā We believe it is only a matter of time before this offensive law is a discarded relic of a bygone era.Ā We look forward to the day when this measure is declared unconstitutional by the highest court in the land and when all of Americaā€™s families can know the blessings of equal protection under the law.

Thank you for your attention to this matter.

best regards,

NANCY PELOSI
Democratic Leader

STENY H. HOYER
Democratic Whip

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U.S. Supreme Court

Supreme Court declines to hear case over drag show at Texas university

Students argue First Amendment protects performance

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The U.S. Supreme Court justices on June 30, 2022. ((Photo by Fred Schilling of the U.S. Supreme Court)

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 ā€œderisive, 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 ā€œit 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 ā€œtext, 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.

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Federal Government

EXCLUSIVE: USAID LGBTQ coordinator visits Uganda

Jay Gilliam met with activists, community members from Feb. 19-27

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U.S. Agency for International Development Senior LGBTQI+ Coordinator Jay Gilliam (Photo courtesy of USAID)

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.Ā Ā 

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.SĀ imposed visa restrictionsĀ on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announcedĀ the suspension of new loansĀ to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act ā€œfurther 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.ā€ 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.Ā 

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.

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Texas

Pornhub blocks Texas accessing site over age verification law

Court battle forced statute to take effect

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Washingtonporn Blade graphic

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.Ā 

A week ago the 5th U.S. Circuit Court of Appeals partially vacated the original injunction, ruling that the age verification requirements are constitutional.Ā 

ā€œApplying rational-basis review, the age-verification requirement is rationally related to the governmentā€™s legitimate interest in preventing minorsā€™ access to pornography,ā€ the three judge panel of the 5th Circuit explained. ā€œTherefore, the age-verification requirement does not violate the First Amendment.ā€

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower courtā€™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. 

Texas users are greeted with this notice.

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 ā€œineffective, haphazard, and dangerous.ā€ 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 DMVā€™s Wallet app, which contains a mobile driverā€™s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the stateā€™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 driverā€™s licenses or other methods.

The Associated Press reported this past October that an adult entertainment groupā€™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.

Texas users are greeted with this notice.

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.

ā€œAs 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.ā€

ā€œMandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,ā€ the statement continues. ā€œAs weā€™ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.ā€

ā€œUntil a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]ā€ 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 toĀ 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.

ā€œAs you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,ā€ the message said. ā€œWhile 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.ā€

Courthouse News reportedĀ that after Virginiaā€™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.Ā Ā 

ā€œWe 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,ā€Ā Lucas saidĀ on X, formerly Twitter. ā€œWe will continue our work to keep pornography out of the hands of minors ā€¦ but we will also work to ensure that this Governorā€™s error does not put the privacy of Virginians at further risk.ā€

Beyond the U.S. in the European Union, Pornhub and two more of the worldā€™s biggest porn websites face new requirements in the European Union that include verifying the ages of users, under the EUā€™s Digital Services Act.

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as ā€œvery large online platformsā€ 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 EUā€™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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