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Anti-gay forces changing tactics on marriage

Calls for limiting fed’l recognition, state religious exemption measures emerge

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NOM President Brian Brown criticized Eric Holder’s extension of rights to same-sex couples. (Washington Blade file photo by Michael Key)

Move over Federal Marriage Amendment: anti-gay forces are focusing on new ways to halt the advancement of marriage equality — and the result could limit marriage rights for gay couples across the country.

As more states legalize same-sex marriage and efforts to pass a U.S. constitutional amendment prohibiting it have faded, the focus has shifted to containing federal recognition to marriage equality states and to advancing religious exemption bills allowing for discrimination against same-sex couples.

Outrage prompting calls for these measures was seen just last weekend when U.S. Attorney General Eric Holder announced he would extend federal recognition of same-sex marriages to programs under the Justice Department’s purview.

The changes were intended to comply with the U.S. Supreme Court’s decision last year against the Defense of Marriage Act. Among other things, they would allow married same-sex couples to file jointly for bankruptcy. In addition, spouses won’t be forced to testify against each other.

Mainstream and conservative media outlets jumped on the development — the Washington Post called the change “sweeping” — while anti-gay groups expressed outrage over Holder’s extension of these rights to same-sex couples in states without marriage equality.

Brian Brown, president of the anti-gay National Organization for Marriage, said Holder’s decision was the latest in a series of moves that “undermine the authority and sovereignty of the states” with respect to marriage.

“The American public needs to realize how egregious and how dangerous these usurpations are and how far-reaching the implications can be,” Brown said. “The changes being proposed here to a process as universally relevant as the criminal justice system serve as a potent reminder of why it is simply a lie to say that redefining marriage doesn’t affect everyone in society.”

To limit federal recognition of same-sex marriages to marriage-equality states, anti-gay groups are championing legislation in the U.S. House known as the State Marriage Defense Act, which would prohibit the federal government from recognizing a same-sex marriage in a state that doesn’t allow gay nuptials.

Tony Perkins, president of the anti-gay Family Research Council, voiced support for the State Marriage Defense Act immediately after Holder’s announcement.

“Attorney General Holder’ s announcement — like his recognition of same-sex ‘marriages’ in Utah despite the Supreme Court granting a stay of the District Court decision overturning that state’s definition of marriage — illustrates the importance of congressional action to pass the State Marriage Defense Act (H.R. 3829), introduced by Rep. Randy Weber (R-Texas),” Perkins said.

Neither the Family Research Council nor the National Organization for Marriage responded to the Washington Blade’s requests to comment on whether calls for this legislation represented a shift in focus away from the Federal Marriage Amendment.

Religious exemption measures emerge

Meanwhile, at the state level, new initiatives are emerging to establish carve-outs to civil rights and marriage equality laws to enable individuals or businesses to discriminate against LGBT people and their marriages on religious grounds.

One such initiative underway in Oregon is concurrent with Oregon United for Marriage’s work to bring the issue of marriage equality to voters on Election Day this year. Anti-gay groups are working to place on the ballot at the same time a measure to allow florists, bakers and other businesses to refuse to participate in these weddings on religious grounds.

Although it’s illegal in Oregon to discriminate on the basis of sexual orientation, the proposal would enable such business to discriminate against gay couples. To qualify for the ballot, anti-gay groups must submit 87,213 valid signatures of Oregon residents by July 3. That’s half the number required to place the marriage equality constitutional amendment on the ballot because the anti-gay measure would only be statutory.

Mike Marshall, Oregon United for Marriage’s campaign manager, told the Washington Blade the religious exemption ballot initiative is a big fear because it could have an impact on the marriage equality campaign.

“The other side knows that when we shift the debate away from love and commitment to protecting religious freedom that you see support go down for marriage three to four percent, and that’s within the margin of victory for us,” Marshall said. “Instead of putting their resources into defeating our campaign, they’re creating a second campaign to shift the focus of the debate, and by doing that, at least carve some level of discrimination that they engage in.”

Marshall said if the religious exemption measure passes, the LGBT community would be faced with similar measures in every state over the next 10 years.

Religious exemption measures are becoming more common in state legislatures. In Kansas, the state legislature approved on Wednesday by a 72-49 vote a bill that would allow state residents to refuse services to gay couples related to same-sex weddings. In Arizona, a House committee approved a broad religious freedom bill to allow individuals and the businesses they own to refuse to provide services based on their religious beliefs.

Similar measures have popped up in Idaho, Mississippi, Ohio, Oklahoma and Maine (although the Maine measure was recently voted down in committee). Measures specifically allowing discrimination against same-sex marriage and gay people, likes the ones in Oregon and Kansas, have come up in South Dakota.

Sarah Warbelow, state legislative director for the Human Rights Campaign, said passage of the bills could cause problems, such as allowing a county clerk to refuse to grant a marriage license.

“The state would still have to find someone to fill in, but it could make it more cumbersome for same-sex couples, not to mention hugely embarrassing,” Warbelow said. “No one should have to stand in line on the penultimate day of their marriage relationship only to find they have to go through a series of county clerks, one after another.”

The religious exemption measures aren’t exclusively found in the states. Rep. Raul Labrador (R-Idaho) in the U.S. House and Sen. Mike Lee (R-Utah) in the Senate have introduced legislation known as the Marriage and Religious Freedom Act, which would prohibit the federal government from discriminating against organizations that exercise “religious conscience” against same-sex marriage.

Raúl Rafael Labrador, Raul Labrador, Idaho, United States House of Representatives, Republican Party, gay news, Washington Blade

Rep. Raúl Rafael Labrador (R-Idaho) has introduced the Marriage and Religious Freedom Act. (Washington Blade file photo by Michael Key)

Rose Saxe, a staff attorney at the American Civil Liberties Union’s LGBT Project, said they’re meant to enable discrimination against gay couples seeking to wed in the states at a later point in time in anticipation of that ruling.

“But the ones that are explicitly anti-gay, we see those as as sort of ‘Plan B’ from the other side in the sense that they see marriage is coming and they’re trying to ensure that even in states where we don’t yet have marriage or robust non-discrimination laws that can preemptively enshrine the right to discriminate,” Saxe said.

Isolated anti-gay incidents driving new tactics

Movement on these bills comes in the aftermath of isolated situations where business owners were accused of acting wrongfully by refusing services for same-sex weddings.

One prominent such incident took place in Colorado, where a judge in December determined a Lakewood bakery known as Masterpiece Cakeshop acted unlawfully by refusing to sell a wedding cake to a gay couple.

A similar incident occurred in Washington State, where Arlene’s Flowers owner Baronelle Stutzma refused to sell flowers to a gay couple and is now facing a lawsuit from the state and couple’s attorney. In Vermont, a resort that was sued in 2011 for refusing to host a lesbian couple’s wedding reception agreed to settle by paying $30,000 in damages.

In addition to invoking the wrath of anti-gay groups, these situations sparked concerns among libertarian-minded supporters of LGBT rights on social media over the perceived unfairness of requiring a business to recognize same-sex marriage.

Saxe said the religious exemption measures have begun to “pop up with more frequency” before state legislatures in the wake of media coverage of these incidents.

“I think those stories are part of the justification,” Saxe said. “In both South Dakota and Kansas, we saw the supporters of this legislation saying that this was about protecting the rights of businesses to not provide wedding services, but then the bills themselves…said any person could refuse to respect any marriage, which is not all about wedding services.”

The majority of the American public opposes making exemptions to accommodate these situations. According to a poll last year conducted by the Human Rights Campaign and the Third Way, 67 percent of voters are opposed to laws that allow businesses to discriminate against gay couples based on religious objections. Further, 56 percent of respondents thought it was already illegal for business owners in their state to refuse service to someone for being gay, although 30 percent were wrong because no such law exists in their state.

It’s also possible that the U.S. Supreme Court could take up a case related to one such isolated objection to a same-sex wedding and issue a sweeping decision enabling discrimination against same-sex couples.

Pending before the U.S. Supreme Court is the appeal of a decision by the New Mexico Supreme Court in the case of Elaine Photography v. Vanessa Willock, which found that the husband-and-wife owned photography business violated New Mexico’s civil rights law by declining to shoot Willock’s commitment ceremony in 2006, even though it was over religious beliefs. (Same-sex marriage at the time wasn’t yet legal in New Mexico.)

Anti-gay groups late last year filed an appeal to the U.S. Supreme Court on the basis that the New Mexico court decision violated Elaine Photography’s rights under the First Amendment’s ban on compelled speech.

Jon Davidson, legal director at Lambda Legal, said he thinks it’s “less likely” the court will take up the case because petitioners asked for a review of rejection of the photographer’s “compelled speech”and not free exercise of religion.

“Given this narrowing of the issue presented, I think it is somewhat less likely that the Supreme Court will grant review, because the issue presented affects fewer people and entities than a religious freedom claim would,” Davidson said.

Although it’s hard to say what action the Supreme Court will take, it may issue writ of certiorari to take up the case this year. If so, a decision would be expected before the court adjourns in June.

CORRECTION: An initial version of this article incorrectly reported the number of signatures to place the anti-gay measure on the ballot in Oregon. The Blade regrets the error.

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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 “derisive, 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 “it 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 “text, 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.  

US sanctioned Ugandan officials over Anti-Homosexuality Act

The U.S imposed visa restrictions on Ugandan officials shortly after Museveni signed the law. The World Bank Group later announced the suspension of new loans to Uganda.

The Biden-Harris administration last October issued a business advisory that said the Anti-Homosexuality Act “further 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.” 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. 

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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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. 

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

“Applying rational-basis review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography,” the three judge panel of the 5th Circuit explained. “Therefore, the age-verification requirement does not violate the First Amendment.”

While the court vacated the injunction against the age-verification requirement of the statute, it upheld the lower court’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 “ineffective, haphazard, and dangerous.” 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 DMV’s Wallet app, which contains a mobile driver’s license.

Users accessing Pornhub from within Louisiana are presented with a different webpage that directs them to verify their age with the state’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 driver’s licenses or other methods.

The Associated Press reported this past October that an adult entertainment group’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.

“As 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.”

“Mandating age verification without proper enforcement gives platforms the opportunity to choose whether or not to comply,” the statement continues. “As we’ve seen in other states, this just drives traffic to sites with far fewer safety measures in place.”

“Until a real solution is offered, we have made the difficult decision to completely disable access to our website in [the aforementioned locales]” 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 to 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.

“As you may know, your elected officials in Utah are requiring us to verify your age before allowing you access to our website,” the message said. “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.”

Courthouse News reported that after Virginia’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.  

“We 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,” Lucas said on X, formerly Twitter. “We will continue our work to keep pornography out of the hands of minors … but we will also work to ensure that this Governor’s error does not put the privacy of Virginians at further risk.”

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

According to a December 20 report from the Associated Press, Pornhub, XVideos and Stripchat have now been classed as “very large online platforms” 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 EU’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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