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D.C. marriage law survives Senate vote

Utah senator sought to add referendum to health care bill

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The U.S. Senate voted 59-36 early Thursday to block consideration of an amendment that would force the District of Columbia to hold a referendum calling for overturning the city’s same-sex marriage law.

Sen. Robert Bennett (R-Utah) introduced the amendment about 1 a.m. during a marathon Senate session in which Republicans introduced dozens of amendments aimed at derailing a health care reconciliation bill backed by President Obama.

Senate Democrats remained united in opposing Bennett’s amendment, as they had for all other amendments offered to the reconciliation measure, saying an unfettered health bill was essential for completing a two-pronged process of finalizing their health care reform package.

The vote to block Bennett’s amendment came in the form of a Republican proposed motion to waive a ruling by the Senate parliamentarian that the amendment was not germane to the health care reconciliation bill. Sen. Max Baucus (D-Mont.), the Senate floor manager of the reconciliation bill, requested the non-germaneness ruling by raising a parliamentary point of order.

Bleary-eyed senators then voted on whether to defeat the motion to waive the point of order, with all Democrats voting against the waiver motion and all but two Republicans voting for it.

Sens. Olympia Snowe (R-Maine) and Susan Collins (R-Maine), both supporters of LGBT rights, were the only two Republicans to break ranks with their party and join Democrats to vote against the waiver.

Five senators — three Republicans and two Democrats — did not vote on the motion.

Sen. Sherrod Brown (D-Ohio), who presided over the Senate at the time of the vote, announced the result of what some political observers say was the first of several expected votes in Congress on D.C.’s same-sex marriage law over the next several months.

“The yeas are 36, the nays are 59,” Brown declared from the podium. “Three-fifths of the senators duly chosen and sworn not having voted the affirmative, the motion is not agreed to. The point of order is sustained. The amendment fails.”

“It is always offensive when Congress tries to meddle with the decisions of the democratically-elected government of the District of Columbia, but this is unfortunately nothing new,” said Trevor Thomas, a spokespereson for the Human Rights Campaign.

“What is deeply cynical about the Bennett Amendment, however, is the attempt by Senate Republicans to use marriage equality in the District as a political wedge to kill the historic effort to improve the health care system for all Americans. Fortunately, a strong majority of Senators rejected this political ploy.”

The defeat of the Bennett amendment followed an e-mail alert issued Wednesday by the anti-gay National Organization for Marriage informing its members and supporters that Bennett planned to introduce the amendment Wednesday or Thursday.

“For weeks, we’ve been working to get a vote on the D.C. Marriage Referendum,” Brian Brown, the group’s executive director, said in the alert. “And Sen. Bob Bennett has championed the cause, pushing for the floor vote that will put the entire Senate on record on marriage. … Please take action now.

“[O]ur senators need to know that we are watching, and will remember in November, how they vote on the D.C. marriage referendum,” Brown said.

Brown’s alert suggests that anti-gay groups would likely portray the vote to disallow the Bennett amendment from being taken up as a direct vote on gay marriage in D.C., despite assertions by Senate Democratic leaders that the vote was aimed only at keeping a non-germane measure off of the health care reconciliation package.

Backers of the health care reform package note that if just one Republican amendment to the reconciliation measure is approved by the Senate, the entire package must return to the House of Representatives for a vote.

Bennett’s amendment was entitled, “To protect the democratic process and the right of the people of the District of Columbia to define marriage.”

The text of the amendment was not immediately released on the Senate web site, and Bennett’s office could not be reached at the time the vote took place.

A similar amendment that Bennett filed two weeks ago but did not introduce called for forcing D.C. to stop issuing marriage licenses until an initiative or referendum was held to allow voters to decide the issue. It could not be immediately determined whether the amendment Bennett introduced Thursday, which the Senate blocked, called for stopping the issuance of same-sex marriage licenses until a referendum was held on the issue.

“It was good to see a super-majority of the Senate reject a hypocritical effort to undermine D.C.’s marriage law as well as health care reform,” said Evan Wolfson, executive director of the national same-sex marraige advocacy group Freedom to Marry.

“The D.C. City Council and mayor duly enacted a law ending exclusion from marriage, and Congress chose not to interfere during the oversight review period before the law took effect,” Wolfson said. “Couples have now married, families have celebrated, and the sun still rose. Members of Congress should focus on ending discrimination, not trying to reinstate it.”

But Bob Summersgill, a gay D.C. activist, predicted that anti-gay groups like NOM would continue relentlessly to attempt to kill the city’s same-sex marraige law.

“I am hopeful that the Congress will not force a ballot measure on marriage equality, but it may happen,” he said. “We must prepare for it. We must continue to talk to our families, friends, neighbors, and coworkers about our families and why marriage equality is important for all of us. We must show that politicians will not lose their seats because they voted for marriage equality, but rather they will gain votes.”

Local gay activist Peter Rosenstein called the vote against the Bennett amendment “a recognition by members of Congress that they should not interfere with D.C.’s home rule.”

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Federal Government

Department of Education to investigate Nex Benedict’s Okla. school district

Nonbinary student died last month after students assaulted them

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Nex Benedict (Family photo)

On Friday the U.S. Department of Education informed Human Rights Campaign President Kelley Robinson that the department will open an investigation in response to HRC’s letter regarding Owasso Public Schools and its failure to respond appropriately to sex-based harassment that may have contributed to the death of Nex Benedict, a 16-year-old nonbinary teenager of Choctaw heritage. 

This investigation was triggered by a formal complaint made last week by Robinson, who wrote to Education Secretary Miguel Cardona and asked his department to use the enforcement mechanisms at its disposal to prevent similar tragedies from taking place in the future and to help hold accountable those responsible for Benedict’s death.

The letter from the Department of Education reads: “the U.S. Department of Education, Office for Civil Rights (OCR), is opening for investigation the above-referenced complaint that you filed against the Owasso Public Schools (the District.) Your complaint alleges that the District discriminated against students by failing to respond appropriately to sex-based harassment, of which it had notice, at Owasso High School during the 2023-2024 school year,” said Robinson.

“Nex’s family, community and the broader 2SLGBTQI+ (two-spirit, lesbian, gay, bisexual, transgender, queer and intersex+) community in Oklahoma are still awaiting answers following their tragic loss. We appreciate the Department of Education responding to our complaint and opening an investigation — we need them to act urgently so there can be justice for Nex, and so that all students at Owasso High School and every school in Oklahoma can be safe from bullying, harassment and discrimination,” Robinson added.

According to the letter, OCR is opening the following issues for investigation:

  • Whether the District failed to appropriately respond to alleged harassment of students in a manner consistent with the requirements of Title IX.
  • Whether the District failed to appropriately respond to alleged harassment of students in a manner consistent with the requirements of Section 504 and Title II.

HRC sent a second letter to the Department asking it to promptly begin an investigation into the Oklahoma State Department of Education, as well as the current State Superintendent of Public Instruction, Ryan Walters. In addition:

  • Robinson wrote to Attorney General Merrick Garland asking the Department of Justice to begin an investigation into Nex’s death.
  • Robinson wrote to Dr. Margaret Coates, superintendent of the Owasso School District in Oklahoma, calling for the superintendent to take advantage of HRC’s Welcoming Schools program — the most comprehensive bias-based bullying prevention program in the nation to provide LGBTQ and gender inclusive training and resources — and offering to bring experts to the district immediately.

The full text of the letter from the Department of Education in response to HRC can be found here.

The full text of the initial letter from Robinson to Cardona can be found here.

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District of Columbia

Judy and Dennis Shepard discuss Nex Benedict, anti-LGBTQ laws at DC event

Nonbinary Okla. high school student died last month after fight

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Dennis and Judy Shephard speak at the Raben Group’s D.C. offices on Feb. 29, 2024. (Washington Blade photo by Amber Laenen)

Judy and Dennis Shepard on Thursday reflected on Nex Benedict’s death and the proliferation of anti-LGBTQ laws across the country during a discussion the Raben Group hosted at their D.C. office.

The discussion, which MSNBC host Jonathan Capehart moderated, took place less than a month after Benedict died.

Benedict, who was nonbinary, passed away on Feb. 8 after students at their high school in Owasso, Okla., assaulted them in a bathroom. 

Vice President Kamala Harris, White House Press Secretary Karine Jean-Pierre, House Speaker Emerita Nancy Pelosi (D-Calif.) and Republican Oklahoma Gov. Kevin Stitt are among those who have publicly responded to Benedict’s death, which took place after they endured months of bullying. More than 300 advocacy groups have demanded Oklahoma Superintendent of Public Instruction Ryan Walters’ removal and called for a federal investigation into the Oklahoma Department of Education’s “actions and policies” that have facilitated a “culture where rampant harassment of 2SLGBTQI+ students has been allowed to go unchecked.”

“Parents are doing whatever they can to protect and encourage and support kids, and you have these what I call evil, evil people around the country pushing these laws,” said Dennis Shepard.

He noted lawmakers around the country are pushing anti-LGBTQ laws and other efforts that include the elimination of diversity, equity and inclusion programs. Dennis Shepard also highlighted an effort to defund gender studies programs at the University of Wyoming.

“[It is] the old white male, Christian geezers who want to go back to the days of the 50s when they had that superior arrogant attitude,” he said. “They’re losing it and they don’t want to, so they’re passing everything they can.”

“What happened to Nex is a result of that,” added Dennis Shepard. “They feel like Henderson and McKinney felt when they took Matt out on the prairie.”

Matthew Shepard died on Oct. 12, 1998, after Russell Henderson and Aaron McKinney brutally beat him and left him tied to a fence in Laramie, Wyo. Then-President Barack Obama in 2009 signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which added sexual orientation and gender identity to the federal hate crimes law.

“If you’re considered different, you’re in fear of your life right now because you don’t fit in and it’s got to stop,” said Dennis Shepard.

Judy Shepard echoed her husband, noting this moment is “the last gasp of the fight against the community.” 

“In my heart, I know this is a moment in time, and it’s going to pass. But also in that time, all these young people, everyone in the community is afraid, but young people are being terrorized,” she said. “It just shouldn’t be happening.”

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U.S. Federal Courts

N.Y. AG joins multi-state brief in Colo. anti-trans discrimination case

Letitia James and 18 other attorneys general support plaintiff

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trans health care, gay news, Washington Blade
New York Attorney General Letitia James (Photo public domain)

New York Attorney General Letitia James on Wednesday joined a brief by 18 other Democratic state attorneys general urging the Colorado Supreme Court to uphold a lower court ruling against Masterpiece Cakeshop for anti-trans discrimination.

A customer, Autumn Scardina, sued the business over claims that it refused to provide her a cake upon learning that it was for a celebration of her transition. The case is not the first in which owner Jack Smith has faced claims of anti-LGBTQ discrimination.

In 2012, Masterpiece Cakeshop refused to fulfill an order for a wedding cake for a same-sex couple, which led to the 2018 U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission — and a narrow ruling that did not address core legal questions weighing the constitutionality of First Amendment claims vis-a-vis the government’s enforcement of LGBTQ-inclusive nondiscrimination laws.

“Denying service to someone simply because of who they are is illegal discrimination, plain and simple,” James said in a press release. “Allowing this kind of behavior would undermine our nation’s fundamental values of freedom and equality and set a dangerous precedent.”

She added, “I am proud to stand with my fellow attorneys general against this blatant transphobic discrimination.”

The Colorado Court of Appeals ruled in favor of Scardina, noting that Smith objected to fulfilling her cake order only after learning about her intended use for it “and that Phillips did not believe the cake itself expressed any inherent message.”

The fact pattern in both cases against Masterpiece Cakeshop resembles that of another case that originated in Colorado and was ultimately decided by the Supreme Court last year, 303 Creative LLC v. Elenis.

This time, the justices did not sidestep the question of whether the state’s anti-discrimination law can be enforced against a business owner, Lorie Smith, a website designer who claimed religious protections for her refusal to provide services to a same-sex couple for their nuptials.

The court’s conservative supermajority ruled in favor of Smith, which was widely seen as a blow to LGBTQ rights.

Joining James in her brief are the attorneys general of Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and D.C.

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