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Legal effort to overturn DOMA offers ‘promising path’

Attorneys prepare for May court hearing in Boston

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The organization spearheading a lawsuit challenging the Defense of Marriage Act is busy with preparations for what could be a monumental court case for LGBT Americans.

Lawyers on both sides of Gill v. U.S. Office of Personnel Management will come before the Federal District Court in Boston on May 6 to argue their cases.

The litigation, filed by Gay & Lesbian Advocates & Defenders, aims to overturn Section 3 of DOMA, which bars the federal government from recognizing same-sex marriages.

Evan Wolfson, executive director of Freedom to Marry, said the GLAD litigation is “a very important, very well prepared case” and “offers a very promising path to beginning to undo the destructive and unconstitutional so-called Defense of Marriage Act.”

“GLAD thought through very carefully the best way to present the core concerns, powerful stories and a smart remedy to maximize our chances of winning in the U.S. Supreme Court,” he said.

Wolfson said he’s certain that GLAD’s attorneys will “be very forceful” in explaining why the federal government’s treatment of same-sex married couples is “unacceptable and unconstitutional.”

The plaintiffs in the case are seven married same-sex couples and three widowers, including Dean Hara, the spouse of Gerry Studds, the late Massachusetts congressman and first openly gay person to serve in Congress.

GLAD contends that as a result of DOMA, which President Bill Clinton signed in 1996, these plaintiffs have been harmed in various ways, including the denial of survivor benefits, health insurance coverage and Social Security benefits, as well as being forced to pay additional federal income taxes. The litigation contends DOMA violates plaintiffs’ rights under the Equal Protection Clause.

Gary Buseck, GLAD’s legal director, said preparations for the court appearance involve submitting several documents to the court to make their case before Judge Joseph Tauro.

The documents, he said, include memoranda of law to the court, a series of affidavits from the plaintiff couples and widowers, and expert affidavits showing why these couples should be treated as a suspect class for heightened scrutiny from the court.

“What we’re trying to think about is best arguments and how to succinctly present our best arguments,” he said. “We’re trying to think about — given what the government has put to writing — what are they likely to lead with, and are we content with the responses that we’ve written, and trying to imagine what the judge might ask.”

Representing the seven married same-sex couples and three widowers seeking federal marriage benefits in Massachusetts will be Mary Bonauto, GLAD’s civil rights project director.

Six years ago, Bonauto was the lead attorney in Goodridge v. Department of Public Health, the state lawsuit that brought same-sex marriage to Massachusetts, making the Bay State the first in the country to legalize gay nuptials.

Buseck said Bonauto is working on being “as heavily as prepared as possible” so she can “answer any question.”

Buseck said the court appearance on May 6 for the GLAD case wouldn’t be the same as the trial earlier this year for Perry v. Schwarzenegger, a lawsuit in California aimed at overturning Proposition 8.

Because the U.S. government filed a motion to dismiss and GLAD filed a request for summary judgment, Buseck said he’s expecting about 45 minutes to an hour of courtroom activity May 6 instead of a trial lasting several weeks, as in the Perry case.

“We don’t know exactly how much time we’re going to have,” he said. “It’s not like an appeals court where they give you a set of block of time and that’s what you get. This is going to be a little more informal than that.”

The Justice Department didn’t respond to DC Agenda’s request to discuss the case.

Buseck said GLAD can guess how the U.S. government will present itself during the court appearance because of the briefs the Justice Department has already issued.

He noted the Obama administration has said it doesn’t agree with the findings Congress presented in 1996 when it passed DOMA and that it considers the statute is discriminatory, but will nonetheless defend the statute because it believes the statute is constitutional.

Buseck predicted that the government will argue it was rational for Congress to enact DOMA in 1996 in an effort to maintain the status quo and “wait and see how this cultural debate plays out.”

“That’s been their fundamental argument to date, and presumably that’s where they’re going to stick,” he said. “So we’re ready for that. We’ve had to respond to those arguments in writing already.”

Legal experts following the case of Gill v. OPM expect it to reach the U.S. Supreme Court and, if successful, the lawsuit would force the U.S. government to recognize same-sex marriages for federal tax purposes and for Social Security benefits.

Buseck said he thinks it’s possible a decision could come down from a trial court in the summer, but more likely a ruling will be issued this fall.

Following the decision, Buseck said the case would likely go to the First Circuit Court of Appeals at the beginning of next year with a possible decision in Spring 2012. If the case were to go to the U.S. Supreme Court, it could go on the 2012 term and be decided in June 2013.

But Buseck emphasized that those dates were a “ballpark” estimate and said “there’s a lot of things that could change those dates.”

Running concurrently with the Gill lawsuit in the Federal District Court in Boston is another case challenging DOMA last year by Massachusetts Attorney General Martha Coakley: Commonwealth of Massachusetts v. U.S. Department of Health & Human Services.

Like the Gill case, the state lawsuit challenges the section of DOMA that prohibits the federal government from recognizing same-sex marriage, but contends that it violates Massachusetts’ state right to regulate marriage under the Tenth Amendment.

The Commonwealth case will be heard in the same court and by the same judge, but the court date is scheduled for May 26.

Buseck said the Commonwealth case and the Gill case “complement each other” but “are in different boxes as far as legal theories go.”

“My sense is the judge will probably just for efficiencies’ sake somehow work on these cases together and it’s been my guess — but I’ve no reason to know that — I won’t be surprised if we get decisions on the same day,” Buseck said.

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Pennsylvania

Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.

State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate

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President Joe Biden, Malcolm Kenyatta, and Vice President Kamala Harris (Official White House Photo by Adam Schultz)

Following his win in the Democratic primary contest on Wednesday, Pennsylvania state Rep. Malcolm Kenyatta, who is running for auditor general, is positioned to potentially become the first openly LGBTQ elected official serving the commonwealth.

In a statement celebrating his victory, LGBTQ+ Victory Fund President Annise Parker said, “Pennsylvanians trust Malcolm Kenyatta to be their watchdog as auditor general because that’s exactly what he’s been as a legislator.”

“LGBTQ+ Victory Fund is all in for Malcolm, because we know he has the experience to win this race and carry on his fight for students, seniors and workers as Pennsylvania’s auditor general,” she said.

Parker added, “LGBTQ+ Americans are severely underrepresented in public office and the numbers are even worse for Black LGBTQ+ representation. I look forward to doing everything I can to mobilize LGBTQ+ Pennsylvanians and our allies to get out and vote for Malcolm this November so we can make history.” 

In April 2023, Kenyatta was appointed by the White House to serve as director of the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans.

He has been an active surrogate in the Biden-Harris 2024 reelection campaign.

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The White House

White House debuts action plan targeting pollutants in drinking water

Same-sex couples face higher risk from environmental hazards

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President Joe Biden speaks with reporters following an Earth Day event on April 22, 2024 (Screen capture: Forbes/YouTube)

Headlining an Earth Day event in Northern Virginia’s Prince William Forest on Monday, President Joe Biden announced the disbursement of $7 billion in new grants for solar projects and warned of his Republican opponent’s plans to roll back the progress his administration has made toward addressing the harms of climate change.

The administration has led more than 500 programs geared toward communities most impacted by health and safety hazards like pollution and extreme weather events.

In a statement to the Washington Blade on Wednesday, Brenda Mallory, chair of the White House Council on Environmental Quality, said, “President Biden is leading the most ambitious climate, conservation, and environmental justice agenda in history — and that means working toward a future where all people can breathe clean air, drink clean water, and live in a healthy community.”

“This Earth Week, the Biden-Harris Administration announced $7 billion in solar energy projects for over 900,000 households in disadvantaged communities while creating hundreds of thousands of clean energy jobs, which are being made more accessible by the American Climate Corps,” she said. “President Biden is delivering on his promise to help protect all communities from the impacts of climate change — including the LGBTQI+ community — and that we leave no community behind as we build an equitable and inclusive clean energy economy for all.”

Recent milestones in the administration’s climate policies include the U.S. Environmental Protection Agency’s issuance on April 10 of legally enforceable standard for detecting and treating drinking water contaminated with polyfluoroalkyl substances.

“This rule sets health safeguards and will require public water systems to monitor and reduce the levels of PFAS in our nation’s drinking water, and notify the public of any exceedances of those levels,” according to a White House fact sheet. “The rule sets drinking water limits for five individual PFAS, including the most frequently found PFOA and PFOS.”

The move is expected to protect 100 million Americans from exposure to the “forever chemicals,” which have been linked to severe health problems including cancers, liver and heart damage, and developmental impacts in children.

An interactive dashboard from the United States Geological Survey shows the concentrations of polyfluoroalkyl substances in tapwater are highest in urban areas with dense populations, including cities like New York and Los Angeles.

During Biden’s tenure, the federal government has launched more than 500 programs that are geared toward investing in the communities most impacted by climate change, whether the harms may arise from chemical pollutants, extreme weather events, or other causes.

New research by the Williams Institute at the UCLA School of Law found that because LGBTQ Americans are likelier to live in coastal areas and densely populated cities, households with same-sex couples are likelier to experience the adverse effects of climate change.

The report notes that previous research, including a study that used “national Census data on same-sex households by census tract combined with data on hazardous air pollutants (HAPs) from the National Air Toxics Assessment” to model “the relationship between same-sex households and risk of cancer and respiratory illness” found “that higher prevalence of same-sex households is associated with higher risks for these diseases.”

“Climate change action plans at federal, state, and local levels, including disaster preparedness, response, and recovery plans, must be inclusive and address the specific needs and vulnerabilities facing LGBT people,” the Williams Institute wrote.

With respect to polyfluoroalkyl substances, the EPA’s adoption of new standards follows other federal actions undertaken during the Biden-Harris administration to protect firefighters and healthcare workers, test for and clean up pollution, and phase out or reduce use of the chemicals in fire suppressants, food packaging, and federal procurement.

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Maine

Maine governor signs transgender, abortion sanctuary bill into law

Bomb threats made against lawmakers before measure’s passage

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Maine Gov. Janet Mills congratulates members of Maine Women's Basketball. In March the team won the America East championship. (Photo courtesy of Mills’s office)

BY ERIN REED | On Tuesday, Maine Gov. Janet Mills signed LD 227, a sanctuary bill that protects transgender and abortion providers and patients from out-of-state prosecution, into law.

With this action, Maine becomes the 16th state to explicitly protect trans and abortion care in state law from prosecution. This follows several bomb threats targeting state legislators after social media attacks from far-right anti-trans influencers such as Riley Gaines and Chaya Raichik of Libs of TikTok.

An earlier version of the bill failed in committee after similar attacks in January. Undeterred, Democrats reconvened and added additional protections to the bill before it was passed into law.

The law is extensive. It asserts that gender-affirming care and reproductive health care are “legal rights” in Maine. It states that criminal and civil actions against providers and patients are not enforceable if the provision or access to that care occurred within Maine’s borders, asserting jurisdiction over those matters.

It bars cooperation with out-of-state subpoenas and arrest warrants for gender-affirming care and abortion that happen within the state. It even protects doctors who provide gender-affirming care and abortion from certain adverse actions by medical boards, malpractice insurance, and other regulating entities, shielding those providers from attempts to economically harm them through out-of-state legislation designed to dissuade them from providing care.

You can see the findings section of the bill here:

The bill also explicitly enshrines the World Professional Association of Transgender Health’s Standards of Care, which have been the target of right-wing disinformation campaigns, into state law for the coverage of trans healthcare:

The bill is said to be necessary due to attempts to prosecute doctors and seek information from patients across state lines. In recent months, attorneys general in other states have attempted to obtain health care data on trans patients who traveled to obtain care. According to the U.S. Senate Finance Committee, attorneys general in Tennessee, Indiana, Missouri, and Texas attempted to obtain detailed medical records “to terrorize transgender teens in their states … opening the door to criminalizing women’s private reproductive health care choices.”

The most blatant of these attempts was from the attorney general of Texas, who, according to the Senate Finance Committee, “sent demands to at least two non-Texas entities.” One of these entities was Seattle Children’s Hospital, which received a letter threatening administrators with arrest unless they sent data on Texas patients traveling to Seattle to obtain gender-affirming care.

Seattle Children’s Hospital settled that case out of court this week, agreeing to withdraw its Texas business registration in return for Texas dropping its investigation. This likely will have no impact on Seattle Children’s Hospital, which has stated it did not treat any youth via telemedicine or in person in Texas; the hospital will be able to continue treating Texas youth who travel outside of Texas to obtain their care. That settlement was likely compelling due to a nearly identical law in Washington that barred out-of-state investigations on trans care obtained solely in the state of Washington.

The bill has faced a rocky road to passage. A similar bill was debated in January, but after coming under intense attack from anti-trans activists who misleadingly called it a “transgender trafficking bill,” the bill was voluntarily withdrawn by its sponsor.

When LD 227 was introduced, it faced even more attacks from Gaines and Libs of TikTok. These attacks were followed by bomb threats that forced the evacuation of the legislature, promising “death to pedophiles” and stating that a bomb would detonate within a few hours in the capitol building.

Despite these threats, legislators strengthened both the abortion and gender-affirming care provisions and pressed forward, passing the bill into law. Provisions found in the new bill include protecting people who “aid and assist” gender-affirming care and abortion, protections against court orders from other states for care obtained in Maine, and even protections against adverse actions by health insurance and malpractice insurance providers, which have been recent targets of out-of-state legislation aimed at financially discouraging doctors from providing gender-affirming care and abortion care even in states where it is legal.

See a few of the extensive health insurance and malpractice provisions here:

Speaking about the bill, Gia Drew, executive director of Equality Maine, said in a statement, “We are thrilled to see LD 227, the shield bill, be signed into law by Gov. Mills. Thanks to our pro equality and pro reproductive choice elected officials who refused to back down in the face of disinformation. This bill couldn’t come into effect at a better time, as more than 40 percent of states across the country have either banned or attempted to block access to reproductive care, which includes abortions, as well as transgender healthcare for minors. Thanks to our coalition partners who worked tirelessly to phone bank, lobby, and get this bill over the finish line to protect community health.” 

Related

Destie Hohman Sprague of the Maine Women’s Lobby celebrated the passage of the bill despite threats of violence, saying in a statement, “A gender-just Maine ensures that all Mainers have access to quality health care that supports their mental and physical wellbeing and bodily autonomy, including comprehensive reproductive and gender-affirming care. We celebrate the passage of LD 227, which helps us meet that goal. Still, the patterns of violence and disinformation ahead of the vote reflected the growing connections between misogyny, extremism, and anti-democratic threats and actions. We must continue to advocate for policies that protect bodily autonomy, and push back against extremist rhetoric that threatens our states’ rights and our citizens’ freedoms.”

The decision to pass the legislation comes as the Biden administration released updated HIPAA protections that protect “reproductive health care” from out-of-state prosecutions and investigations.

Although the definition of “reproductive health care” is broad in the new HIPAA regulations, it is uncertain whether they will include gender-affirming care. For at least 16 states, though, gender-affirming care is now explicitly protected by state law and shielded from out-of-state legislation, providing trans people and those seeking abortions with protections as the fight increasingly crosses state lines.

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

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The preceding article was first published at Erin In The Morning and is republished with permission.

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