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In historic week, a chorus of support for marriage equality

NFL players, major corporations, politicians denounce DOMA, Prop 8

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Mike Neubecker, gay news, gay marriage, Respect for Marriage Coalition, gay news, Washington Blade
Mike Neubecker, gay news, gay marriage, Respect for Marriage Coalition, gay news, Washington Blade

Mike Neubecker signed a PFLAG brief against Prop 8 for his son-in-law David (right). (Washington Blade photo by Michael Key)

A slew of legal briefs ā€” signed by parties ranging from NFL players to LGBT advocates to businesses ā€” were filed this week before the U.S. Supreme Court in lawsuits challenging California’s Proposition 8 and the Defense of Marriage Act.

During a news conference held on Thursday by the Respect for Marriage Coalition, a number of parties that filed briefs in the cases spoke out on why they were calling on the Supreme Court to issue rulings striking down Prop 8 and DOMA.

Mike Neubacker, a self-avowed devout Christian from Michigan, held back tears as he explained why he penned his name to a brief against Prop 8 filed by the LGBT group PFLAG. He and his wife, Janice, signed the brief on behalf of his son Lee, his spouse David and their two children.

“I met a lot of people in PFLAG, and signed on to this brief also knowing all the people that helped me besides my own family,”Ā Neubacker said. “For me, marriage, when I say that I’ve been married 41 years to my wife, I usually get applause if I’m speaking somewhere because there’s that respect for marriage that’s understood. Right away, they immediately know the relationship and what we meant to each other. I want Lee and David to have that same recognition when they say they’re married.”

Gay former Rep. Jim Kolbe of Arizona was among the 131 Republicans who signed another brief against Prop 8Ā ā€” which was also signed by former Republican presidential candidate Jon Huntsman, former California gubernatorial candidate Meg Whitman, director Clint Eastwood as well as Reps. Ileana Ros-Lehtinen (R-Fla.) and Richard Hanna (R-N.Y.). He also spoke at the news conference in terms of DOMA’s impact on bi-national same-sex couples.

“My partner is from Panama,” Kolbe said. “He’s been here for a number of years. He’s a Fulbright scholar, master’s degree in special education, bilingual education specialist, but our getting married does not permit the right to immigrate to this country, so our struggle to get immigration for him has been a long and very difficult one for him.”

Two separate briefs were filed in the DOMA case and the Prop 8 case that were signed by a number of LGBT advocacy groups, including the Human Rights Campaign, the National Center for Lesbian Rights, the National Gay & Lesbian Task Force, the Courage Campaign and the Center for American Progress, as well as other civil rights groups such as the National Council of La Raza and the National Immigration Forum.

Both briefs argue that Prop 8 and DOMA should be ruled unconstitutional because laws related to sexual orientation merit heightened scrutiny in the courts.

“Amici urge the Court to hold that classifications based on sexual orientation are subject to heightened scrutiny, so that governments cannot use invented, after-the-fact rationalizations to mask and justify discrimination based on prejudice, antipathy, or baseless stereotypes,” the Prop 8 brief states. “Discrimination based on sexual orientation bears the same essential hallmarks as other kinds of discrimination that have long received heightened scrutiny, and it should be treated no differently under the law.”

Gay & Lesbian Advocates & Defenders and Lambda Legal, which had filed their cases against DOMA that didn’t reach the Supreme Court, also filed their own brief in the case challenging the 1996 anti-gay law.

That 39-page brief also maintains DOMA should be subject to heightened scrutiny, but also argues the law would fail under a lower standard of rational basis review.

“DOMA bears each of the various indicia the Court has considered when it has invalidated laws under rational basis review,” the brief states. “DOMA both targets a group disliked at the time of its passage and impacts important personal interests. It arose not out of the usual process of allocating federal rights and benefits but as a one-time departure from the traditional method of predicating eligibility for federal marriage-based protections on a coupleā€™s marital status under state law.”

Another brief was filed in the Prop 8 case by National Football League players known for their support for marriage equality: Chris Kluwe, punter for the Minnesota Vikings, and Brendon Ayanbadejo, linebacker for the Super Bowl champion Baltimore Ravens.

The football players argue that professional sports play a major role in shaping public opinion and Prop 8 should be ruled unconstitutional because the earlier decision from the U.S. Ninth Circuit Court of Appeals striking down the measure is consistent with the constitution.

“The NFL, NHL, MLB, and NBA, at the league level, team level, and individual level, are finally speaking out against homophobia and intolerance of LBGTQ individuals,” the brief states. “More and more of us realize that using demeaning slur words like ‘faggot,’ ‘queer,’ and ‘gay’ can have serious, negative consequences.”

The deadline for filing in the Prop 8 case was Thursday and the deadline for filing in the DOMA case was Friday. In the Prop 8 case, oral arguments are set for March 26; they’re set the day after on March 27 in the DOMA case. Justices are expected to render a decision before their term ends in June.

A list of other friend-of-the-court briefs filed in the Prop 8 and DOMA cases follows. The Washington Blade has written more extensive articles on some of these briefs already.

Friend-of-the-court briefs against Prop 8

ā€¢ Amid calls from LGBT advocates, the Obama administration a filed legal brief against California’s same-sex marriage ban. The brief focuses on the unconstitutionality of Prop 8, but Obama himself said the reasoning in the brief could be applied to other laws.

ā€¢ A “red” state coalition of groups that operate where same-sex marriage is illegal ā€” ranging from the Utah Pride Center, to the Campaign for Southern Equality, to Equality Virginia ā€” filed a brief arguing that both Prop 8 and DOMA should be subject to heightened scrutiny.

ā€¢ A coalition of state attorneys general, including Connecticut Attorney General George Jepsen, D.C. Attorney General Irvin Nathan, Illinois Attorney General Lisa Madigan, filed another brief against Prop 8.

ā€¢ California Gov. Jerry Brown (D), who has declined to defend Prop 8 in court, also filed a brief calling on the court to strike down the measure.

ā€¢Ā Gay California Assembly Speaker John Perez ā€” who’s reportedly on Obama’s short list as the next labor secretary ā€” filed with law professors a brief against Prop 8 arguing that laws preventing equal political participation merit heightened scrutiny.

ā€¢ Equality California filed a brief against Prop 8 with a different focus, arguing that proponents of the measure don’t have standing to defend the law in court.

ā€¢ The libertarian think-tank known as the Cato Institute joined the Constitutional Accountability Center filed a brief arguing that Prop 8 violates equal protection under the U.S. Constitution.

Friend-of-the-court briefs against DOMA

ā€¢Ā 212 congressional Democrats filed a brief against DOMA, marking the first time ever that House and Senate lawmakers have joined together in calling the anti-gay law unconstitutional.

ā€¢ The LGBT military group OutServe-SLDN filed a brief against DOMA emphasizing the harm it causes gay service members with same-sex partners.

ā€¢ A coalition of 278 of municipalities and businesses, including Google, Twitter and Microsoft, filed a brief maintaining DOMA is unconstitutional because it requires employers to discriminate against married gay employees.

ā€¢ The Family Equality Council and the Gay, Lesbian & Straight Education Network filed a brief with allied organizations against both DOMA and Prop 8.

ā€¢ The American Bar Association filed a brief asking the U.S. Supreme Court to consider the ā€œserious obstaclesā€ that DOMA imposes on lawyersā€™ clients who are same-sex couples legally married under state law.

ā€¢ The Gay & Lesbian Medical Association filed briefs in both the Prop 8 and DOMA cases highlighting for the justices the scientific and clinical evidence that sexual orientation is an innate human characteristic.

ā€¢ Trevor Potter, gay adviser to John McCain’s 2008 presidential campaign and author of McCain-Feingold, signed a brief against DOMA filed by former federal election commissioners. That brief argues DOMA ā€” when superimposed onto federal campaign finance law ā€” legally bars married gays and lesbians from political expression and association opportunities that are afforded to other married citizens.

Michael K. Lavers contributed to this report.

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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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