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Judge sets Feb. 25 trial for Michigan marriage ban

Hopes dashed for quick ruling in favor of marriage rights for gay couples

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Jayne Rowse, Michigan, gay news, Washington Blade, marriage equality, same-sex marriage, gay marriage
April DeBoer, Jayne Rowse, Michigan, gay news, Washington Blade, marriage equality, same-sex marriage, gay marriage

April DeBoer (on left) and Jayne Rowse speak at a rally before the Michigan court hearing on marriage equality (Washington Blade photo by Chris Johnson).

DETROIT — A federal judge on Wednesday dashed the hopes of those seeking a quick ruling in favor of marriage equality in Michigan when he instead announced he would bring the case to trial beginning Feb. 25.

Following 60 minutes of oral arguments, U.S. District Judge Bernard Friedman declared he would hold an “expedited” trial where experts could testify on whether the state has a legitimate interest to ban same-sex marriage, denying requests from both sides to grant summary judgment. The judge granted attorneys 30 days to prepare a witness list for the trial.

“What is in dispute… is whether or not there’s a legitimate state interest, and that’s a battle of the experts,” Friedman said.

The case before the court, DeBoer v. Snyder, was filed last year by April DeBoer and Jayne Rowse, a lesbian couple in Hazel Park, Mich. They initially filed their complaint to seek second-parent adoption rights for their three children, but later amended their complaint to ask the court to overturn the constitutional ban on same-sex marriage approved by voters in 2004.

Friedman announced his decision to bring the case to trial after hearing arguments both for and against lifting the marriage ban from attorneys in oral arguments. Both sides drew on the U.S. Supreme Court decision against the Defense of Marriage Act in making their case on the constitutionality of the ban on same-sex marriage. It was the first oral arguments on marriage in federal court since the Supreme Court decisions in June.

Attorney general argues on behalf of marriage ban

Representing the state during oral arguments was Assistant Attorney General Kristin Heyse, who argued the court should deny the requests of plaintiffs in the case on the basis that Michigan’s ability to make its own decisions on domestic relations is “indisputable” following the DOMA decision.

“The relief that they request in this particular case, your honor, would require this court to usurp the same sovereign authority that governs domestic relations,” Heyse said. “This the court should decline to do.”

Carole Stanyar, one of four private attorneys representing plaintiffs in the lawsuit, made use of the DOMA decision the other way during arguments by pointing the language in the decision pertaining to children, saying the children of her clients are being harmed under state law.

“I absolutely believe, your honor, that the five justices that decided on that language were looking past that case to pass the language in Windsor to our plaintiffs, our littlest plaintiffs, to these children, to the children of gay and lesbian parents all across Michigan and all across America,” Stanyar said.

Stanyar also maintained Heyse’s interpretation of the DOMA decision is incorrect because although the Supreme Court said domestic relationships are up to the states, they can’t act in a way that’s unconstitutional with regard to the people involved.

Other cases also came into play.

Heyse maintained that Baker v. Nelson, a case seeking same-sex marriage that the Supreme Court refused to hear in 1972, provided the controlling precedent in the case. At this point, Friedman interrupted her, saying “That’s about a 40 year old case! What about Lawrence?”

But Heyse maintained the issue of homosexual relations is different than the issue of marriage, which she said is still controlled by Baker. 

Further, she pointed to two other recent district court decisions in Nevada and Hawaii that upheld bans on same-sex marriage as a result of the Baker decision. However, both decisions were rendered before the Supreme Court decisions in expanding marriage equality this June.

Urging the court to avoid ruling in favor of plaintiffs by applying a heightened scrutiny to Michigan’s law and marriage and adoption, Heyse said, “There is no fundamental right to same-sex marriage or adoption.”

Prefacing her arguments by saying they weren’t an attack on the gay people, Heyse said the electorate had a legitimate interest in approving a ban on same-sex marriage and proper venue for making a decision on both the marriage and adoption issue is through the legislative process, not the courts.

“The people of the state of Michigan should be allowed to decide when and if there should be a change in the law,” Heyse said. “In 2004, nearly 2.7 million voters chose to reaffirm traditional definition of marriage, which remains between one man and one woman. That was not a vote against the gay and lesbian community, but a vote to maintain the traditional definition.”

At one point during the arguments, Stanyar and Friedman had an exchange when the attorney said the court should rule for her client because social science indisputably says gay parents are just as fit to be parents as heterosexuals.

Friedman responded her couldn’t make a ruling on any one piece of social science alone because there may be other opinions, but Stanyar held firm, saying the state provided no affidavit to the contrary.

“At this stage in history, it is no longer debatable,” Stanyar said. “These things have been proven. They’ve been proven over and over and over again. They chose to proceed on summary judgment. They haven’t offered you any affidavit.”

Also urging the court to overturn the ban on same-sex marriage was Michael Pitt, an attorney representing Oakland County Clerk Lisa Brown.

Pitt maintained Brown, who filed her own a petition before the court in favor of overturning the marriage ban, would not “delay even one minute” to give marriage licenses to gay couples if the court allowed her to do so.

“The clerk knows, as we all do, that committed same-sex couples live together as a family, sometimes for decades, raise children together, provide financial stability for each other, help each other in time of illness, help each others’ family members and, at the end of life, they are there to provide comfort and say goodbye,” Pitt said. “These relationships define our personal autonomy, our liberties, and no law has ever trampled on these personal choices.”

Pro-gay lawyers see opportunity in trial

The judge’s decision to bring the case to trial is along the lines of what happened in the federal lawsuit that overturned California’s Proposition 8. When the case came before U.S. District Judge Vaughn Walker in 2010, he ordered that a trial would be held before issuing ruling against the referendum against same-sex marriage.

Dana Nessel, another attorney representing the plaintiff couple, said on the steps of the court after the arguments she’s disappointed in the delay, but will prepare witnesses as requested by the judge.

“Naturally, there’s some mild disappointment there,” Nessel said. “But we look forward to a trial and we look forward to the opportunity to present our experts in the case. Honestly, we have an overwhelming amount of evidence to present to the court to show that same-sex parents are every bit as good as opposite-sex parents. We know that to be the truth.”

Jay Kaplan, a staff attorney for the ACLU of Michigan, was present in the courtroom during the oral arguments and later told the Washington Blade the delay in a decision is “disappointing,” but a trial would be beneficial in the pursuit of marriage equality because the opposing side won’t be able to produce witnesses.

“I think what the judge is basically saying is he wants to make sure that whatever decision he renders can be backed up with strong facts, testimony and expertise,” Kaplan said. “When you look at the California case…proponents of marriage equality couldn’t find those people to back up those assertions. I think the same thing will happen in the State of Michigan. They’re not going to be able to find reputable studies with experts who can support denying gay couples the right to marry.”

Oakland County Clerk Lisa Brown was also present near the court after the hearing, saying she knows of gay couples are disappointed because they called her office asking if they could obtain marriage licenses there if the court ruled for marriage equality.

“Those rights are being violated, I think, and it’s very disappointing,” Brown said.

Asked by the Washington Blade if she would help with preparing with witness lists for the trial, Brown said she’s still surprised that Friedman made the decision take the case there.

“I think we’re all still kind of surprised that this is what the judge decided today,” Brown said. “He could have done this in the summer when we had a hearing. In all the scenarios that we imagined that would happen today, this was not one of them.”

Heyse had no comment in response to the Blade’s questions following the oral arguments and directed inquiries to the attorney general’s office. It didn’t respond to requests for comment.

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After Biden signs TikTok ban its CEO vows federal court battle

“Rest assured, we aren’t going anywhere,” CEO said

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TikTok mobile phone app. (Screenshot/YouTube)

President Joe Biden signed an appropriations bill into law on Wednesday that provides multi-billion dollar funding and military aid for Ukraine, Israel, and Taiwan after months of delay and Congressional infighting.

A separate bill Biden signed within the aid package contained a bipartisan provision that will ban the popular social media app TikTok from the United States if its Chinese parent company ByteDance does not sell off the American subsidiary.

Reacting, TikTok CEO Shou Zi Chew said Wednesday that the Culver City, Calif.-based company would go to court to try to remain online in the U.S.

In a video posted on the company’s social media accounts, Chew denounced the potential ban: “Make no mistake, this is a ban, a ban of TikTok and a ban on you and your voice,” Chew said. “Rest assured, we aren’t going anywhere. We are confident and we will keep fighting for your rights in the courts. The facts and the constitution are on our side, and we expect to prevail,” he added.

White House Press Secretary Karine Jean-Pierre adamantly denied during a press briefing on Wednesday that the bill constitutes a ban, reiterating the administration’s hope that TikTok will be purchased by a third-party buyer and referencing media reports about the many firms that are interested.

Chew has repeatedly testified in both the House and Senate regarding ByteDance’s ability to mine personal data of its 170 million plus American subscribers, maintaining that user data is secure and not shared with either ByteDance nor agencies of the Chinese government. The testimony failed to assuage lawmakers’ doubts.

In an email, the former chair of the House Intelligence Committee, U.S. Rep. Adam Schiff (D-Calif.), who doesn’t support a blanket ban of the app, told the Washington Blade:

“As the former chairman of the House Intelligence Committee, I have long worked to safeguard Americans’ freedoms and security both at home and abroad. The Chinese Communist Party’s ability to exploit private user data and to manipulate public opinion through TikTok present serious national security concerns. For that reason, I believe that divestiture presents the best option to preserve access to the platform, while ameliorating these risks. I do not support a ban on TikTok while there are other less restrictive means available, and this legislation will give the administration the leverage and authority to require divestiture.”

A spokesperson for U.S. Sen. Alex Padilla (D-Calif.) told the Blade: “Senator Padilla believes we can support speech and creativity while also protecting data privacy and security. TikTok’s relationship to the Chinese Communist Party poses significant data privacy concerns. He will continue working with the Biden-Harris administration and his colleagues in Congress to safeguard Americans’ data privacy and foster continued innovation.”

The law, which gives ByteDance 270 days to divest TikTok’s U.S. assets, expires with a January 19, 2025 deadline for a sale. The date is one day before Biden’s term is set to expire, although he could extend the deadline by three months if he determines ByteDance is making progress or the transaction faces uncertainty in a federal court.

Former President Donald Trump’s executive order in 2020, which sought to ban TikTok and Chinese-owned WeChat, a unit of Beijing-based Tencent, in the U.S., was blocked by federal courts.

TikTok has previously fought efforts to ban its widely popular app by the state of Montana last year, in a case that saw a federal judge in Helena block that state ban, citing free-speech grounds.

The South China Morning Post reported this week that the four-year battle over TikTok is a significant front in a war over the internet and technology between Washington and Beijing. Last week, Apple said China had ordered it to remove Meta Platforms’s WhatsApp and Threads from its App Store in China over Chinese national security concerns.

A spokesperson for the ACLU told the Blade in a statement that “banning or requiring divestiture of TikTok would set an alarming global precedent for excessive government control over social media platforms.”

LGBTQ TikToker users are alarmed, fearing that a ban will represent the disruption of networks of support and activism. However, queer social media influencers who operate on multiple platforms expressed some doubts as to long term impact.

Los Angeles Blade contributor Chris Stanley told the Blade:

“It might affect us slightly, because TikTok is so easy to go viral on. Which obviously means more brand deals, etc. However they also suppress and shadow ban LGBTQ creators frequently. But we will definitely be focusing our energy more on other platforms with this uncertainty going forward. Lucky for us, we aren’t one trick ponies and have multiple other platforms built.”

Brooklyn, N.Y.,-based gay social media creator and influencer Artem Bezrukavenko told the Blade:

“For smart creators it won’t because they have multiple platforms. For people who put all their livelihood yes. Like people who do livestreams,” he said adding: “Personally I’m happy it gets banned or American company will own it so they will be less homophobic to us.”

TikTok’s LGBTQ following has generally positive experiences although there have been widely reported instances of users, notably transgender users, seemingly targeted by the platform’s algorithms and having their accounts banned or repeatedly suspended.

Of greater concern is the staggering rise in anti-LGBTQ violence and threats on the platform prompting LGBTQ advocacy group GLAAD, in its annual Social Media Safety Index, to give TikTok a failing score on LGBTQ safety.

Additional reporting by Christopher Kane

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Smithsonian staff concerned about future of LGBTQ programming amid GOP scrutiny

Secretary Lonnie Bunch says ‘LGBTQ+ content is welcome’

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Lonnie G. Bunch III, secretary of the Smithsonian Institution, appears before a Dec. 2023 hearing of the U.S. Committee on House Administration (Screen capture: Forbes/YouTube)

Staff at the Smithsonian Institution are concerned about the future of LGBTQ programming as several events featuring a drag performer were cancelled or postponed following scrutiny by House Republicans, according to emails reviewed by the Washington Post.

In December, Secretary Lonnie G. Bunch III appeared before a hearing led by GOP members of the Committee on House Administration, who flagged concerns about the Smithsonian’s involvement in “the Left’s indoctrination of our children.”

Under questioning from U.S. Rep. Stephanie Bice (R-Okla.), Bunch said he was “surprised” to learn the Smithsonian had hosted six drag events over the past three years, telling the lawmakers “It’s not appropriate to expose children” to these performances.

Collaborations with drag artist Pattie Gonia in December, January, and March were subsequently postponed or cancelled, the Post reported on Saturday, adding that a Smithsonian spokesperson blamed “budgetary constraints and other resource issues” and the museums are still developing programming for Pride month in June.

“I, along with all senior leaders, take seriously the concerns expressed by staff and will continue to do so,” Bunch said in a statement to the paper. “As we have reiterated, LGBTQ+ content is welcome at the Smithsonian.”

The secretary sent an email on Friday expressing plans to meet with leaders of the Smithsonian Pride Alliance, one of the two groups that detailed their concerns to him following December’s hearing.

Bunch told the Pride Alliance in January that with his response to Bice’s question, his intention was to “immediately stress that the Smithsonian does not expose children to inappropriate content.”

“A hearing setting does not give you ample time to expand,” he said, adding that with more time he would have spoken “more broadly about the merits and goals of our programming and content development and how we equip parents to make choices about what content their children experience.”

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Survey finds support for Biden among LGBTQ adults persists despite misgivings

Data for Progress previewed the results exclusively with the Blade

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Former President Donald Trump and President Joe Biden (Washington Blade photo by Michael Key)

A new survey by Data for Progress found LGBTQ adults overwhelmingly favor President Joe Biden and Democrats over his 2024 rival former President Donald Trump and Republicans, but responses to other questions may signal potential headwinds for Biden’s reelection campaign.

The organization shared the findings of its poll, which included 873 respondents from across the country including an oversample of transgender adults, exclusively with the Washington Blade on Thursday.

Despite the clear margin of support for the president, with only 22 percent of respondents reporting that they have a very favorable or somewhat favorable opinion of Trump, answers were more mixed when it came to assessments of Biden’s performance over the past four years and his party’s record of protecting queer and trans Americans.

Forty-five percent of respondents said the Biden-Harris administration has performed better than they expected, while 47 percent said the administration’s record has been worse than they anticipated. A greater margin of trans adults in the survey — 52 vs. 37 percent — said their expectations were not met.

Seventy precent of all LGBTQ respondents and 81 percent of those who identify as trans said the Democratic Party should be doing more for queer and trans folks, while just 24 percent of all survey participants and 17 percent of trans participants agreed the party is already doing enough.

With respect to the issues respondents care about the most when deciding between the candidates on their ballots, LGBTQ issues were second only to the economy, eclipsing other considerations like abortion and threats to democracy.

These answers may reflect heightened fear and anxiety among LGBTQ adults as a consequence of the dramatic uptick over the past few years in rhetorical, legislative, and violent bias-motivated attacks against the community, especially targeting queer and trans folks.

The survey found that while LGBTQ adults are highly motivated to vote in November, there are signs of ennui. For example, enthusiasm was substantially lower among those aged 18 to 24 and 25 to 39 compared with adults 40 and older. And a plurality of younger LGBTQ respondents said they believe that neither of the country’s two major political parties care about them.

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