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The unclear future of LGBTQ rights at the Supreme Court

Is there reason to hope the justices will surprise us?

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marriage equality, Supreme Court, gay news, Washington Blade
marriage equality, Supreme Court, gay news, Washington Blade

(Washington Blade file photo by Michael Key)

The Supreme Court’s new term began Oct. 1. The justices have not yet accepted any cases squarely addressing LGBTQ rights questions; however, numerous appeals raising key issues for our community are waiting in the wings. As Brett Kavanaugh settles into his new position on the Court after a fractious confirmation process, many in the LGBTQ community are wondering which, if any, pending cases the Court will choose to hear and, if it does take on any such cases, how it will rule.

There’s no question that there’s a lot at stake.

There are four petitions now pending before the Court asking it to decide whether federal sex discrimination laws encompass discrimination based on sexual orientation or gender identity. If the Court agrees to hear any of these, its ruling could determine whether LGBTQ people are protected under current federal laws prohibiting discrimination in employment, education, housing and credit.

Two cases challenging President Trump’s attempt to bar transgender people from the military are at the federal courts of appeals, one step from the Supreme Court. One of them—Lambda Legal’s and OutServe-SLDN’s Karnoski v. Trump case—is being argued to the Ninth Circuit on Oct. 10.

Several cases already on appeal could again put before the Court as to whether there are circumstances in which businesses have a constitutional right to discriminate. In one, a Hawaii bed & breakfast owner is expected to soon petition the Court to review a decision that rejected her claim of a right to refuse a lesbian couple lodging.   

Three suits questioning whether schools can bar transgender students from restrooms that match their gender identity also are now on appeal. So, too, is a case asking whether the city of Philadelphia acted properly in terminating its contracts with two religiously affiliated foster care agencies that refused to abide by the city’s sexual orientation nondiscrimination policies.

Accordingly, it could be a big year for LGBTQ Americans in the highest court of the land—but it might not be. The Supreme Court doesn’t have to consider any of these cases. Out of approximately 7,000 requests that the Court review lower court decisions each year, the Court agrees to hear about only 80, or slightly more than one percent of them.

Brett Kavanaugh’s recent confirmation brings even more uncertainty to the Supreme Court this year. Lacking a record of LGBTQ rulings, we still do not know for sure how Kavanaugh will rule on sexual orientation or gender identity questions. He has a record of ruling conservatively on many issues. Nonetheless, during his confirmation hearing, he repeatedly quoted from an opinion authored by his mentor, Justice Anthony Kennedy, that, “The days of discriminating against gay and lesbian Americans or treating gay and lesbian Americans as inferior in dignity and worth are over.”

Even if the new Justice Kavanaugh does end up siding with members of the Court who have dissented from the Court’s prior landmark victories for LGBTQ rights in any cases the Court agrees to hear, it may be possible to swing Chief Justice Roberts to join with the four justices who have ruled in favor of LGBTQ people in the past. Roberts previously voted with those justices in decisions rejecting a challenge to the Affordable Care Act, allowing cities to sue banks that targeted people of color for high-risk loans, and restricting the police’s ability to obtain suspects’ cellphone location data without a warrant. And notwithstanding Roberts’ criticism of the Court’s marriage equality decision, he subsequently voted to summarily reverse the Arkansas courts’ judgment that the state did not have to list both same-sex spouses’ names on their children’s birth certificates.

The Chief Justice’s votes sometimes reflect institutionalist concerns with preserving the Court’s legitimacy and stature. That impulse may cause him to decline to overturn certain prior precedents. It also may lead him to vote against hearing cases that may be especially divisive or to find ways to avoid particularly controversial outcomes that would subject the Court to criticism. That’s especially likely to weigh on his mind because of how partisan Justice Kavanaugh’s confirmation turned out to be.

There also are important cases already on the Court’s docket that go beyond LGBTQ concerns. For example, the Court has agreed to hear Gamble v. United States. That appeal asks the Court to overturn its precedent that the Constitution’s bar on double jeopardy—which prohibits prosecuting someone twice for the same offense—does not bar separate prosecutions for violation of state and of federal law based on the same conduct. The issue is important because, if that precedent were reversed, a presidential pardon of those indicted for federal crimes could preclude states from prosecuting them as well.

Time will tell. In the meantime, it’s imperative that we not give up hope and that we not put all our apples in the Supreme Court basket.

 

Jon Davidson is chief counsel for Freedom for All Americans.

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Commentary

Sexting with younger guy has me asking: How queer am I?

Reflections on LGBTQ life in 2024

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Jake Stewart is a recovering Hill staffer based in D.C. In addition to writing, he barbacks at the Little Gay Pub."

Once upon a time, not all that long ago, a man sexted another man. 

There were words. There were pictures. There were filthy questions and even filthier responses. You know, the way a good sexting convo ought to be, for those who dabble. 

One man was 33. The other, 24. And while it comes as no shock that I was the 33-year-old, it may be more surprising to learn it was the 24-year-old who grabbed the reins. 

What kinks you into? he asked. 

Shit – I didn’t know. I barely even bottomed before the pandemic, and now I had to know my kinks? 

I’m open, I replied, evasively. You? 

His response left me coughing: “Love musk sweat ws public group rough bb verbal bate edge roleplay and very open-minded.” 

Now I’m no prude (in fact, many would call me a downright whore) but this young man articulating his kinks and fetishes in such detail blew my mind. When did he learn what he liked? At 24, all I wanted was to top a guy and leave with as little communication or attachment as possible. At 33, I wasn’t sure what a few of the items he listed even meant.  

Perhaps I shouldn’t be surprised when young men — and the younger generation across the LGBTQ spectrum in general — have already figured out their sexual interests. I arrived in D.C. from Idaho in 2008 as a fresh-faced 18-year-old; I came out three years later in 2011. Attitudes toward queerness have shifted substantially since then, and these days it is undeniably easier for younger people to explore their sexual and gender identities (which, by the way, is fantastic). 

But this conversation left me wondering: What do I like? I haven’t sought out that many new sexual experiences, and while fetishes, kinks, and sexual desires can seem trivial, they’re inextricably intertwined with gender and relationships. If I can’t articulate what I like in the sack (or in public, if I dare), then how do I know what I’m seeking from a long-term partner, or if that’s even what I want? 

As soon as I came out, I thought my job was done. All I needed after that was to snatch up a cutie and settle down. Instead, my identity centered on building my career in politics, where sexual openness isn’t as appreciated. I, like many D.C. queers around me, moved here bright-eyed, bushy-tailed, and ready to change the world for good. 

Then came a tough lesson: Just because I wanted to improve the world didn’t mean people wanted me to. I was inexplicably fired from not one job but two, and suddenly the do-gooder in me grew jaded. The career I dedicated years to was suddenly ripped from my hands, and I became so disillusioned I didn’t even want it back. Oh, and the cherry on top: My boyfriend dumped me two days later. 

Once everything unraveled, I wondered: Was the me of the past the me I truly wanted? Or was I reflecting back what I thought everyone wanted me to be? 

Well, a few major meltdowns and an extended slut phase later, my life couldn’t be more different. I now work at a new gay bar in town to support myself, and I’ve given myself space to pursue the arts. This former straight-laced, type-A, tightly wound gay abandoned the safe track and he couldn’t be more terrified. He also couldn’t be more excited. 

But losing my old career also left an existential-sized hole in my identity. So, as I sexted this 24-year-old with newfound awareness of my limitations, I decided this must change. 

How? As I said, I work at a gay bar in one of the queerest cities in America. Now more than ever I’m surrounded by those who are LGBTQ and every shade in between. Why not learn from those around me, whether younger, older, or around the same age, but whose experiences are no less queer? Why not carve out time to have in-depth discussions and discover what the possibilities are? 

If being queer means to go against the established norms of gender and sexuality, then there’s still plenty of territory for me to explore. No longer can ‘bottom’ or ‘top’ be my only options. 

So, the purpose of this column – aptly titled Queer Quest – is to capture my exploration of queer identity. It’s not to teach you as much as it is to teach myself, and you can either learn alongside me or simply be entertained. At the very least, I’ll have a series of portraits on what it’s like to be queer in the mid 2020s. At most, I’ll have a better understanding of who I am as a queer person. 

Then maybe, just maybe, I’ll become a better sexter. 

Jake Stewart is a D.C.-based writer.

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Commentary

What will you do to make Pride safe this year?

Anxiety reigns among American Jews after Oct. 7

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(Washington Blade photo by Michael Key)

Each year, hundreds of thousands of Jews and supporters of Israel attend Pride marches. With a few exceptions, these spaces have always been safe and welcoming for the broader Pride community. 

But this year is different. 

For American Jews, anxiety reigns as we head into this Pride season. The appalling rise of antisemitism since Oct. 7 forces us to ask difficult questions. As many Jews increasingly feel alienated and excluded from progressive spaces, we’re left to wonder: If I wear a Jewish symbol, march with a Jewish group, or wave a rainbow flag adorned with the Star of David, will I be safe at Pride?

Even before Oct. 7, LGBTQ Jews had plenty of reason to feel trepidation about their safety at Pride. From blanket bans on Stars of David at past Pride gatherings to antisemitism on display at the recent Sydney Pride, too often Jews feel forced to choose between their LGBTQ and Jewish identities and hide their connection to Israel.

Since Oct. 7, terms like “apartheid,” “genocide” and “Zionism equals racism” are increasingly thrown around casually, often without a nuanced understanding of their impact or the realities they oversimplify. This rhetoric not only alienates but also endangers Jewish queer people. It makes us feel emotionally unsafe. It increases the chances that we will be physically unsafe as well. 

We must not allow the Israel-Palestine conflict to be imported into Pride.

I will always remember the euphoria of the first Pride rally I attended. I was barely 18 years old, in a crowd of people of all ages, races, genders and gender orientations — and they were like me. Queer. It felt safe. It was the first time I experienced that feeling of safety, and it will always stay with me. 

Like Pride events everywhere, it was a vibrant, colorful space for LGBTQ people to celebrate our true authentic selves, without fear or reservation.

But that feeling of safety wasn’t shared by everyone in my small New England town. I soon noticed a few people scattered throughout the crowd wearing paper bags over their heads, with eye holes so they could see but not be seen. I later learned that those faceless people were teachers who, in those days before civil rights protections, needed to protect their identities and their careers. 

They did not feel safe. Will Jews and those who are connected to Israel feel safe this year?

The history of Pride is a testament to courage in the face of adversity. It wasn’t long ago when attending Pride events was a defiant act against societal norms, where participants like those teachers faced tangible threats of discrimination, ridicule and even violence. Even today in some places, our queer community still navigates a gauntlet of hatred as we try to celebrate who we are.

It’s crucial to recognize that within the Jewish community, there is a wide spectrum of views on the Israeli-Palestinian conflict, including many who are deeply committed to advocating for Palestinian rights. In fact, many of the 1,200 innocent Israelis murdered on Oct. 7 were Zionists who devoted their lives to reconciliation and peace with their Arab neighbors.

We are at a pivotal moment, one that demands action: What can we do to ensure Pride remains a safe space for everyone, including Jewish participants?

It’s imperative that Pride committees around the country proactively address these concerns. They must implement training programs focused on de-escalation and fostering an environment of understanding and respect.

As individuals who stand in solidarity with the values of Pride, each of us must consider our role in this effort. Will you march alongside those of us who feel vulnerable, offering your presence as a shield against intolerance? Will you engage in dialogues that challenge the importation of external conflicts into Pride, advocating instead for a celebration that unites rather than divides?

The true test of inclusivity at Pride lies not merely in welcoming a diverse crowd, but in ensuring that every participant feels safe and valued. If we remain indifferent to the vulnerabilities faced by Jewish queer people this Pride season, we will fall short of the very ideals of inclusivity and solidarity that Pride stands for.

Just as we expect schools to protect trans and nonbinary students like Nex Benedict, we have a responsibility in the LGBTQ community to ensure that people can carry an Israeli flag or a Palestinian flag, wear a yarmulke or a hijab and be safe.

As we look forward to this year’s Pride, let us commit to making it a space where safety is not a privilege afforded to some but a right enjoyed by all. Let’s engage with our local Pride committees, advocate for comprehensive safety measures and stand in solidarity with those who feel at risk. 

Only then can we celebrate the true spirit of Pride, rooted in love, acceptance and the unwavering belief in equality for all.

Ethan Felson is the executive director of A Wider Bridge.

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Opinions

How to protect your sobriety on St. Patrick’s Day

Celebrate with a supportive friend and carry a mocktail

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Sobriety can be challenging, whether you overcame alcohol or drug addiction or chose to abstain from alcohol for a healthier life. Holidays like St. Patrick’s Day can serve as a reminder of the past or could be looked at as another day. 

Many celebrate St. Patrick’s Day sober, as there are generally family-friendly gatherings, community events, or even sober celebrations. If you have concerns about your sobriety, there are practical tips you can use to protect it on St. Patrick’s Day. 

For instance, remind yourself why you are sober, and don’t do it alone. You can still have fun and celebrate but do it with other sober people. Everyone has their reasons for stopping drinking; remind yourself of those reasons and hold yourself accountable.  

Know your triggers; it doesn’t matter if you are a recovering addict or have removed alcohol from your life. Be cautious around possible triggers that pose a challenge. Most people in this situation choose to skip the bar and find something fun to do or go to a sober St. Patrick’s Day celebration. 

Keep a non-alcoholic drink or mocktail in your hand. People will not bother you to ask if you want a drink if you already have something to sip on, like a mocktail. This also leads to planning how to say no. You will encounter social pressure if you go to a bar on St. Patrick’s Day. It’s unavoidable. It’s wise to practice ways to refuse alcohol. 

Finally, if all else fails, take a walk outside if you feel overwhelmed. The most straightforward solutions are usually the best. Remove yourself from any situation you know will lead to relapse. This is also why it’s essential to be with a sober friend or loved one; there is accountability and someone to lean on.

The benefits of being sober are plentiful, along with the numerous health perks, such as better quality sleep, more mental alertness, and lessened anxiety or depression. Yet, there is one benefit that is not necessarily always spoken about. 

Being sober on St. Patrick’s Day or any day removes all chances of impaired driving. Unfortunately, days that promote heavy alcohol use may increase the chances of drunk or drugged driving. For example, in Washington State, impaired driving has been involved in roughly half of fatal crashes for decades. In 2022, 52% of traffic fatalities involved an impaired driver, according to the Traffic Safety Commission. 

Moreover, drivers ages 21 to 30 make up one-third of impaired drivers in fatal crashes, and another 20% are ages 31 to 40. If you are celebrating St. Patrick’s Day sober, take the necessary precautions and look out for one another. If you choose to consume alcohol, drink responsibly, know your limits, and do not drink and drive.

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