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How will Supreme Court rule on marriage?

Parsing statements, records for hints as to how justices will decide DOMA, Prop 8 cases

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Supreme Court, Clarence Thomas, Sonia Sotomayor, Antonin Scalia, Stephen Breyer, John Roberts, Samuel Alito, Anthony Kennedy, Elena Kagan, Ruth Bader Ginsburg
Supreme Court, Clarence Thomas, Sonia Sotomayor, Antonin Scalia, Stephen Breyer, John Roberts, Samuel Alito, Anthony Kennedy, Elena Kagan, Ruth Bader Ginsburg

Justices on the U.S. Supreme Court are expected to issue rulings on the Prop 8 and DOMA cases in June. (Photo public domain)

The nine members of the U.S. Supreme Court are expected to reach a decision by the end of June in two high-profile LGBT rights cases on which they heard oral arguments last week challenging California’s Proposition 8 and the federal Defense of Marriage Act.

The justices could reach any number of decisions on either or both of the cases ā€” upholding the anti-gay measures, dismissing the cases for lack of standing or jurisdiction, striking down Prop 8 and DOMA on grounds they violate the rights of same-sex couples under the U.S. Constitution ā€” or even issuing a national ruling in favor of marriage equality.

Predicting how they might rule is tricky. But several of the justices made statements and asked questions during the oral arguments that offered some hints. Perhaps more significantly, many of them have a record of ruling in gay rights cases that might indicate their leanings on marriage. The Washington Blade has compiled profiles of the justices to assess how they might rule in the two marriage cases before them.

In addition to examining their comments during the arguments, the Blade has looked at how they ruled in other high-profile gay rights cases. One is the 1996 case of Romer v. Evans in which the Supreme Court struck down Colorado’s Amendment 2, which would have prohibited municipalities from passing non-discrimination ordinances protecting LGBT people. Another is the 2003 case of Lawrence v. Texas in which the Supreme Court struck down state sodomy laws.

The Blade also looked at the court ruling in the 2010 case of Christian Legal Society v. Martinez. In that case, the court upheld the Hastings College of Lawā€™s non-discrimination policy against a challenge from Hastings Christian Fellowship, which sought to overturn the policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers.

John Roberts, Supreme Court, gay news, Washington Blade

Chief Justice John Roberts (Photo public domain)

1. Chief Justice John Roberts

The chief justice of the Supreme Court seemed skeptical during oral arguments that Prop 8 and DOMA should be struck down as unconstitutional. He also seemed dismissive of the notion that LGBT people lack political power.

In an exchange with attorney Robbie Kaplan,Ā Chief Justice John Roberts disputed that gay people lack political power ā€” a characteristic that the court has considered in weighing whether a group should be considered a suspect class.

“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.

The chief justice was likely referring to the trend of U.S. senators announcing their support for marriage equality, which just this week added Sens. Bob Casey (D-Pa.), Tom Carper (D-Del.) and Mark Kirk (R-Ill.). When Kaplan pointed out that no group has been subject to referenda in recent years like gay people, Roberts seemed unmoved.

“You just referred to a sea change in people’s understandings and values from 1996, when DOMA was enacted, and I’m just trying to see where that comes from, if not from the political effectiveness of groups on your side,” Roberts said.

Roberts, who was appointed by President George W. Bush, hasn’t ruled on many gay rights cases during his time on the bench. Still, Roberts ruled as part of the dissent that deemed exclusion of LGBT students was acceptable in the Christian Legal Society case.

On the other hand, Roberts in 1996 helped gay rights activists as part of his law firm’s pro bono work in preparation for the Romer case. He also has a lesbian cousin, Jean Podrasky, who attended arguments on Prop 8.

Suzanne Goldberg, a lesbian and co-director of Columbia Universityā€™s Center for Gender & Sexuality Law, pointed to another comment Roberts made indicating a parent forcing a child to make friends with another child changes the definition of friendship.

“It suggested that he might be less open to recognizing marriage rights for same-sex couples than the Olson-Boies team had anticipated,” Goldberg said.

Antonin Scalia, Supreme Court, gay news, Washington Blade

Associate Justice Antonin Scalia (Photo public domain)

2. Associate Justice Antonin Scalia

Associate Justice Antonin Scalia, viewed by many as the most anti-gay of the justices, mused that being raised by gay parents may not be good for a child ā€” an argument made by many anti-gay groups.

“If you redefine marriage to include same-sex couples, you must permit adoption by same-sex couples, and there’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not,” Scalia said. “Some states do not permit adoption by same-sex couples for that reason.”

Those words are consistent with anti-gay views that Scalia has expressed in the past. Most notably, speaking at Princeton in December, Scalia compared bans on sodomy to laws against murder, saying, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Since his confirmation to the court, Scalia has not only made anti-gay rulings, but has taken the lead on the opinions. The Reagan-appointed justice wrote the dissenting opinions in the Romer and Lawrence cases and joined with other dissenting justices in ruling for LGBT exclusion in the Christian Legal Society case.

Doug NeJaime, who’s gay and a professor at Loyola Law School, said Scalia is likely to rule to uphold Prop 8 and the Defense of Marriage Act.

“Justice Scalia has made clear in earlier opinions … that legislation can be justified merely by moral disapproval of homosexuality, even though a majority of the court has rejected that position,” NeJaime said. “Moreover, under his theory of constitutional interpretation, he does not believe that lesbians and gay men have a constitutional basis for their claims in these cases.”

Anthony Kennedy, Supreme Court, gay news, Washington Blade

Associate Justice Anthony Kennedy (Photo public domain)

3. Associate Justice Anthony Kennedy

The justice who’s being most closely watched because of his reputation for being a swing vote ā€” and his previous rulings in favor of gay rights ā€” conveyed mixed sentiments during the arguments.

Associate Justice Anthony Kennedy contemplated the effect that overturning or sustaining Prop 8 would have on children based on the newness of same-sex marriage.

“We have five years of information to weigh against 2,000 years of history or more,” Kennedy said. “On the other hand, there is … what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”

A Reagan appointee, Kennedy authored the majority opinions in the Romer and Lawrence cases that struck down anti-gay measures in those lawsuits. In the Christian Legal Society case, Kennedy also ruled in favor of requiring student groups to be open to all students regardless of LGBT status.

That’s what makes Kennedy’s comment questioning the Ninth Circuit ruling against Prop 8, which was largely based on his opinion in Romer, particularly noteworthy.

“The rationale of the Ninth Circuit was much more narrow,” Kennedy said. “It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any state in the union, just didn’t go far enough, and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.”

Nan Hunter, a lesbian law professor at Georgetown University, said the “single most powerful vibe”Ā she received from Kennedy during arguments was his ambivalence.

“My best guess is that in the Perry case, he will rule in some way that avoids discussion of Prop 8’s constitutionality and that in the Windsor case, he will conclude that DOMA is unconstitutional, but his opinion may invoke federalism as much as it does the Equal Protection Clause,” Hunter said.

Clarence Thomas, Supreme Court, gay news, Washington Blade

Associate Justice Clarence Thomas (Photo public domain)

4. Associate Justice Clarence Thomas

In accordance with his custom, Associate Justice Clarence Thomas remained silent for the duration of oral arguments in the marriage cases.

Thomas is known for not asking questions. In January, after seven years of silence, the George H.W. Bush-appointed justice made news when he broke his tradition and cracked a joke about the competency of an attorney during a case unrelated to marriage.

But Thomas has a history of taking the anti-gay side. He ruled in the dissent in the Romer and Lawrence cases and ruled for LGBT exclusion in the Christian Legal Society case.

Chris Stoll, a senior staff attorney for the National Center for Lesbian Rights, said oral arguments don’t offer any information on how Thomas might rule, but noted the justice’s history of anti-gay opinions.

“He is quite conservative and historically has voted with the other conservative justices in cases involving LGBT equality,” Stoll said.

5. Associate Justice Ruth Bader Ginsburg

Ruth Bader Ginsburg, Supreme Court, gay news, Washington Blade

Associate Justice Ruth Bader Ginsburg (Photo public domain)

One justice who has a history of ruling in favor of gay rights indicated a disdain for DOMA during oral arguments.

Associate Justice Ruth Bader Ginsburg said the 1996 law creates two different kinds of unions for same-sex and opposite-sex couples: “the full marriage, and then this sort of skimĀ milk marriage.”

While questioning attorney Paul Clement, Ginsburg more distinctly articulated the problems for gay couples under DOMA by enumerating benefits denied to them under the law.

“The problemĀ is if we are totally for the states’ decision that thereĀ is a marriage between two people, for the federal government then to come in to say no joint return, noĀ marital deduction, no Social Security benefits; yourĀ spouse is very sick but you can’t get leave; people ā€”Ā if that set of attributes, one might well ask, what kindĀ of marriage is this?” Ginsburg said.

Ginsburg also has a history suggesting she’d be willing to rule against Prop 8 and DOMA. The Clinton-appointed justice ruled in favor of LGBT advocates in the Romer, Lawrence and Christian Legal Society cases. Prior to her confirmation as a Supreme Court justice, Ginsburg was a women’s rights advocate and co-founder of the women’s rights project at the American Civil Liberties Union.

David Gans, civil rights director for the progressiveĀ Constitutional Accountability Center, said he considers Ginsburg a likely vote to strike down DOMA and Prop 8 based on her history of rulings and comments made in court.

“I think her comments tended to be across the board very skeptical of the justifications offered, and, of course, her record, both as an advocate and justice is to honor the constitutional guarantee of equal protection applies to all persons,” Gans said.

Stephen Breyer, Supreme Court, gay news, Washington Blade

Associate Justice Stephen Breyer (Photo public domain)

6. Associate Justice Stephen Breyer

The other Clinton appointee on the bench also made comments during the Prop 8 arguments suggesting he might rule in favor of marriage rights for gay couples.

Associate Justice Stephen Breyer was dismissive of Cooper’s assertion that marriage is for procreation, observing California allows straight couples who cannot have children to marry.

“What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?” Breyer said. “I mean, there are lots of people who get married who can’t have children.”

And Breyer’s earlier rulings suggest he would be amenable to striking down Prop 8 and DOMA. Breyer joined Kennedy and other justices in the pro-gay rulings for Romer and Lawrence and sided with LGBT inclusion in the Christian Legal Society Case.

Gans said Breyer’s comments during the Prop 8 arguments indicate his rulings on the anti-gay measures will likely be consistent with his earlier decisions.

“Justice Breyerā€™s questions during oral argument suggested that he would find that discriminatory marriage laws violate the constitutional guarantee of equal protection for all persons,” Gans said.

Samuel Alito, Supreme Court, gay news, Washington Blade

Associate Justice Samuel Alito (Photo public domain)

7. Associate Justice Samuel Alito

Associate Justice Samuel AlitoĀ expressed concerns about same-sex marriage,Ā quipping that it’s “newer than cell phones or the Internet.”

“Same-sex marriage isĀ very new,” Alito said. “I think it was first adopted in theĀ Netherlands in 2000. So there isn’t a lot of data aboutĀ its effect. And it may turn out to be a goodĀ thing; it may turn out not to be a good thing, as theĀ supporters of Proposition 8 apparently believe.”

An appointee of President George W. Bush, Alito hasn’t been on the court long enough to have ruled in the earlier landmark Lawrence and Romer cases. But he wrote the dissenting opinion in favor of LGBT exclusion in the Christian Legal Society case.

Lavi Soloway, a gay immigration attorney and co-founder of The DOMA Project, said he expects Alito to be consistent and issue an anti-gay decision in the cases before him ā€” taking note of the exchange in the Prop 8 case.

“This line of thinking was disappointing; it not only belittled the fight for equality, but suggested that Justice Alito would first need to be convinced of the ‘effects’ of same-sex marriage before he could determine whether gay and lesbian Americans have a constitutionally protected right to marry,” Soloway said. “This exchange suggested to me that Alito will most likely vote to uphold Prop 8, preferring that legislatures continue to wrestle with this issue.”

Sonia Sotomayor, Supreme Court, gay news, Washington Blade

Associate Justice Sonia Sotomayor (Photo public domain)

8. Associate Justice Sonia Sotomayor

Another justice ā€” this one appointed by President Obama ā€” asked some of the most pointed questions about whether there’s any reason anti-gay laws could survive the court’s lowest standard of review.

Associate Justice Sonia Sotomayor pressed attorney Charles Cooper on whether he could conceive of anti-gay laws on other issues other than marriage that could survive rational basis review. The answer from Cooper was that he could not.

“If that is true, then why aren’t they a class?” Sotomayor responded. “If they’re a class that makes any other discrimination improper, irrational, then why aren’t we treating them as a class for this one thing?”

Sotomayor’s response suggests she might agree with the Obama administration that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.

A newcomer to the court, Sotomayor hasn’t had the opportunity to rule on many of the earlier LGBT rights cases that have come before the bench. But in the Christian Legal Society case, she joined four other justices in ruling student groups had to accept all students regardless of LGBT status.

Notably, Sotomayor was the only one among nine justices who responded to a letter from a North Carolina 6th grader named Cameron urging justices to rule in favor of marriage equality. The justice said she had no comment on the marriage cases, but urged Cameron to keep “dreaming big.”

NCLR’s Stoll pointed to Sotomayor’s exchange with Cooper as evidence she’d rule against Prop 8 and had similar expectations for how she’d rule on DOMA.

“She seemed perplexed and unpersuaded by Cooperā€™s argument that excluding gay people from marriage somehow promotes ‘responsible procreation’ by different-sex couples,” Stoll said.

Elena Kagan, Supreme Court, gay news, Washington Blade

Associate Justice Elena Kagan (Washington Blade photo by Michael Key)

9. Associate Justice Elena Kagan

Yet another justice appointed by President Obama seemed skeptical about arguments presented by proponents of Prop 8 and DOMA.

Associate Justice Elena Kagan suggested to attorney Paul Clement that Congress may have had another motive other than uniformity when it determined to pass the anti-gay law.

“This was a real difference in the uniformityĀ that the federal government was pursuing,” Kagan said. “And itĀ suggests that maybe something ā€” maybe Congress hadĀ something different in mind than uniformity.”

Clement offered a lengthy response in which he talked about federal bans on polygamy and laws after the Civil War allowing freed slaves to marry. But Kagan responded by reading from the House report on DOMA, which states the law was passed “to reflect an honor ofĀ collective moral judgment and to express moralĀ disapproval of homosexuality” ā€” deemed a “gotcha” moment that elicited laughter from those in the courtroom.

During the Prop 8 arguments, Kagan was also skeptical of Cooper’s argument that the purpose of marriage is procreation and asked for a legitimate reason for excluding same-sex couples from marriage.

“Is there any reason that you have forĀ excluding them?” Kagan said. “In other words, you’re saying, well, ifĀ we allow same-sex couples to marry, it doesn’t serve theĀ state’s interest. But do you go further and say that itĀ harms any state interest?”

Like Sotomayor, Kagan is a relative newcomer to the court and hasn’t had the opportunity to rule on gay cases. During her confirmation hearing, Kagan wouldn’t say whether the she thinks the U.S. Constitution guarantees same-sex couples the right to marry.

Still, Loyola’s NeJaime said Kagan seemed bothered during oral arguments by equal protections concerns presented by Prop 8 and DOMA.

“Given her lengthy questions about the relationship between age and procreative ability, she seems unconvinced by the ‘responsible procreation’ rationale for same-sex marriage bans,” NeJaime said. “And given her reading of the House report on DOMA regarding the ‘moral disapproval of homosexuality,’ she is suggesting that the law may not survive rational basis review.”

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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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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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