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Prop 8 case wraps up, ruling expected in weeks

Appeals could take years; may be destined for Supreme Court

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Attorneys Ted Olson and David Boies (front) are waging the case against Proposition 8, which banned same-sex marriage in California. (Photo courtesy of Equal Rights Foundation)

Marriage equality supporters were focused this week on the closing arguments in a case that could end California’s ban on same-sex marriage and similar bans throughout the country.

In the case Perry v. Schwarzenegger, attorney Ted Olson, a former U.S. solicitor general for former President George W. Bush, was set to give his final arguments in favor of same-sex marriage on Wednesday, after Blade deadline.

The legal challenge, pending before Chief Judge Vaughn Walker of the U.S. District Court of Northern California, aims to invalidate Proposition 8, a ballot initiative in 2008 that ended same-sex marriage in the Golden State.

In a conference call last week with reporters, Olson made the case for same-sex marriage in California. He noted that the U.S. Supreme Court has “declared again and again” that being able to choose the person one wants to marry “is a fundamental right in this country.”

“It is vital to the opportunity for people to be a part of communities, of neighborhoods — to be able to join together in a committed relationship and to bond with one another in a relationship sanctioned by the state,” he said.

Olson compared Prop 8 to state laws banning interracial marriage, which the U.S. Supreme Court struck down in the 1967 case Loving v. Virginia, and said he was presenting the same arguments in the Perry case.

“The parents of our president of the United States would have committed a crime had they been married at the time our president was born,” Olson said.

Olson said Prop 8 is unconstitutional in part because the referendum created four separate classes of people in California with respect to marriage.

They are same-sex couples who married in California before Prop 8 passed and remain married; same-sex couples who cannot marry; same-sex couples who married in other jurisdictions and have full legal marriage rights in California; and opposite-sex couples whom Olson said can marry whomever those choose “even if they’re in prison, even if they’re child abusers, or even if they’re 90 years old.”

Olson litigated the case in partnership with David Boies, an attorney who’s also been involved in high-profile cases. The two men were on opposite sides of Bush v. Gore in 2000; Olson represented then-Republican presidential candidate Bush while Boies represented Democratic presidential candidate Al Gore.

Boies, who cross-examined defendant witnesses during the trial, said, “there isn’t any support” for the arguments advanced by proponents of Prop 8 during the trial.

Proponents of Prop 8, Boies said, presented several arguments that failed under examination, such as the purpose of marriage being procreation, that marriage has always been between one man and one woman, and that same-sex marriages could endanger opposite-sex marriages.

“None of the defendant witnesses supported those propositions, and, in fact, all of their witnesses who spoke on those issued ended up giving contrary testimony,” Boies said.

For example, he said, witnesses under examination acknowledged that procreation has never been a requirement for marriage and many societies in the past have allowed same-sex marriage, including for a time California after the state’s Supreme Court in 2008 ruled that same-sex nuptials were mandated under the state constitution.

“It was only the passage of Proposition 8 that took this right away from gay and lesbian couples even in California,” Boies said.

Additionally, Boies said defendants’ witnesses acknowledged on the stand that prohibiting LGBT couples from marrying “caused them serious damage, and caused the hundreds of thousands of children that those couples were raising serious damage.”

Boies also said defendants were unable to produce witnesses that could provide “a shred of evidence” that same-sex marriage endangers opposite-sex marriage.

“It’s a critically important case, but it’s one in which the facts really are not in dispute,” Boies said. “The other side doesn’t have a legal argument, they don’t have a factual argument — they got a circular bumper sticker for a case.”

Proponents of Prop 8 will also have an opportunity to offer remarks during closing arguments. Chuck Cooper, lead attorney for defendants, will represent those arguing for the court to uphold Prop 8.

In a statement, Jim Campbell, an attorney for Alliance Defense Fund, a conservative legal firm working on the case, said defendants would emphasize arguments they made throughout the trial.

“The team of attorneys defending Proposition 8 will highlight all the reasons why Proposition 8 is constitutional,” he said. “In doing so, they will emphasize the reasons why Proposition 8 is not only rational, but also why preserving marriage as one man and one woman is good social policy.”

Jennifer Pizer, marriage project director and senior counsel for Lambda Legal, predicated both sides in the Perry case would “survey the evidence” already presented during the trial.

She said Olson and Boies presented “a massive evidentiary record” before the court and expected them “to offer a structure for this mountain of relevant evidence that they have submitted.”

For proponents of Prop 8, Pizer said she expects attorneys to “make a mountain out of the barely noticeable molehill of evidence” that they’ve submitted.

She said much of the defendants’ evidence was submitted from individuals who weren’t qualified as experts, meaning they weren’t in court and qualified according to the rules and therefore not examined.

“The defendants offered into evidence a pile of articles without explanation of who the authors were or why any of their writings might be relevant to anything,” she said. “So I suspect that Chuck Cooper may refer to many of those documents as if they were relevant evidence, but they’re not.”

Pizer also predicted that the defendants would argue that the “anti-gay prejudice that infused and inspired the Prop 8 campaign” isn’t legally relevant to whether the initiative is constitutional. Still, Pizer said she believes this anti-gay bias was the sole purpose of Prop 8.

“The proponents of Prop 8 were inspired by anti-gay prejudice and they sent the voting public misinformation in a deliberate attempt to confuse and induce people to vote their prejudice into law — and they succeeded,” she said.

Pizer said Lambda was involved in the Perry case by filing two friend-of-the-court briefs in favor of the legal challenge to Prop 8 as well as providing resource assistance to plaintiffs in the case.

Earlier this month, Walker presented an 11-page list of questions he wanted attorneys on both sides of the case to answer during closing arguments. Among the topics for plaintiffs was a requested review of any empirical data showing that the availability of same-sex marriage reduces discrimination against LGBT people.

During the conference call, Olson said that such data can be found in the ballot label for Prop 8, which noted the measure “eliminates the rights for same-sex couples to marry.”

“You are not only stating that the state creates discrimination, but that the state sanctions discrimination — and sanctions the points of the attitudes — that bring about private discrimination,” Olson said. “It has always been the case that when the court eliminates state discrimination … that people open up and realize that what they’re doing themselves is not permissible.”

Another question was how the court could find Prop 8 unconstitutional without also invalidating the Defense of Marriage Act, the 1996 law prohibiting federal recognition of same-sex marriages.

Boies said the matter under consideration is different from DOMA because state law traditionally determines marriage in the United States, although some of the constitutional arguments against DOMA are similar to those against Prop 8.

“For all of the rights that are a matter of state law — which are the majority of rights that are involved — it is critical that people have the right to marry even if DOMA were to continue to exist,” Boies said.

Several observers following the case have predicted that Walker will rule in favor of plaintiffs, although how subsequent courts will rule on any appeal remains to be seen.

Pizer said she couldn’t predict how Walker will rule in the case, but noted that the questions he’s posed show a focus on “questions of causation.”

“He is focused on whether there are adequate government purposes and whether there’s a proper causal relationship between what Prop 8 actually does and goals that the state is actually permitted to have,” she said. “Advancing prejudice is never a proper government purpose.”

In response to a Blade inquiry on the timeline for the case, Olson said he expects a decision from Walker in the case within weeks of the closing arguments. The next step would be taking the case to the U.S. Court of Appeals for the Ninth Circuit.

Olson said he hopes that Walker will find Prop 8 unconstitutional and allow LGBT people to start marrying in California immediately, but noted that if he withholds institution of that decision, plaintiffs hope the Ninth Circuit would hear the case “in a hurry.”

“That’s probably a process that would take perhaps a year, although we moved through this case fairly rapidly so far,” Olson said.

The case could then be appealed to the U.S. Supreme Court. Olson said following the appeals court ruling, it would take six to eight months to get the case on the docket for the high court.

But Pizer said it’s difficult to determine how long the case would remain in the Ninth Circuit because it could first go before a three-judge panel — and then advance to an 11-judge panel.

“That’s a long way of saying it’s impossible to tell how long it would be between now and the Supreme Court,” she said. “It might be two years or three years. Anybody who gives you a prediction is making a guess.”

Asked whether the Supreme Court would examine only the constitutionality of Prop 8 or the validity of same-sex marriage bans throughout the country, Olson said the scope of the examination would be up to the Supreme Court.

“It will also be a part and a function of what the district court and the Ninth Circuit of Appeals decides, and who’s the party bringing the case to the Supreme Court, but I think that the court will have a menu of opportunities,” he said.

Olson said it’s possible the Supreme Court would only examine the constitutionality of the same-sex marriage ban in California because Prop 8 is “particularly egregious.”

He noted that California was the only state to allow same-sex couples to marry and then eliminate that right — and the only state to create four sets of classes of couples.

Still, Olson said “at the base” of the Perry case is the fundamental right to marry, which would apply to same-sex marriage bans throughout the country.

“I think there will be a great temptation once it gets to the Supreme Court for the justices to say, ‘This case can come back to us in various forms; we should look at the fundamental rights and decide the rights of these Americans now once and for all,’” Olson said. “We hope that that would be the case.”

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New York

Men convicted of murdering two men in NYC gay bar drugging scheme sentenced

One of the victims, John Umberger, was D.C. political consultant

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(Washington Blade photo by Michael K. Lavers)

A New York judge on Wednesday sentenced three men convicted of killing a D.C. political consultant and another man who they targeted at gay bars in Manhattan.

NBC New York notes a jury in February convicted Jayqwan Hamilton, Jacob Barroso, and Robert DeMaio of murder, robbery, and conspiracy in relation to druggings and robberies that targeted gay bars in Manhattan from March 2021 to June 2022.

John Umberger, a 33-year-old political consultant from D.C., and Julio Ramirez, a 25-year-old social worker, died. Prosecutors said Hamilton, Barroso, and DeMaio targeted three other men at gay bars.

The jury convicted Hamilton and DeMaio of murdering Umberger. State Supreme Court Judge Felicia Mennin sentenced Hamilton and DeMaio to 40 years to life in prison.

Barroso, who was convicted of killing Ramirez, received a 20 years to life sentence.

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National

Medical groups file lawsuit over Trump deletion of health information

Crucial datasets included LGBTQ, HIV resources

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HHS Secretary Robert F. Kennedy Jr. is named as a defendant in the lawsuit. (Washington Blade photo by Michael Key)

Nine private medical and public health advocacy organizations, including two from D.C., filed a lawsuit on May 20 in federal court in Seattle challenging what it calls the U.S. Department of Health and Human Services’s illegal deletion of dozens or more of its webpages containing health related information, including HIV information.

The lawsuit, filed in the United States District Court for the Western District of Washington, names as defendants Robert F. Kennedy Jr., secretary of the Department of Health and Human Services (HHS) and HHS itself, and several agencies operating under HHS and its directors, including the Centers for Disease Control and Prevention, the National Institutes of Health, and the Food and Drug Administration.

“This action challenges the widespread deletion of public health resources from federal agencies,” the lawsuit states. “Dozens (if not more) of taxpayer-funded webpages, databases, and other crucial resources have vanished since January 20, 2025, leaving doctors, nurses, researchers, and the public scrambling for information,” it says.

 “These actions have undermined the longstanding, congressionally mandated regime; irreparably harmed Plaintiffs and others who rely on these federal resources; and put the nation’s public health infrastructure in unnecessary jeopardy,” the lawsuit continues.

It adds, “The removal of public health resources was apparently prompted by two recent executive orders – one focused on ‘gender ideology’ and the other targeting diversity, equity, and inclusion (‘DEI’) programs. Defendants implemented these executive orders in a haphazard manner that resulted in the deletion (inadvertent or otherwise) of health-related websites and databases, including information related to pregnancy risks, public health datasets, information about opioid-use disorder, and many other valuable resources.”

 The lawsuit does not mention that it was President Donald Trump who issued the two executive orders in question. 

A White House spokesperson couldn’t immediately be reached for comment on the lawsuit. 

While not mentioning Trump by name, the lawsuit names as defendants in addition to HHS Secretary Robert Kennedy Jr., Matthew Buzzelli, acting director of the Centers for Disease Control and Prevention; Jay Bhattacharya, director of the National Institutes of Health; Martin Makary, commissioner of the Food and Drug Administration; Thomas Engels, administrator of the Health Resources and Services Administration; and Charles Ezell, acting director of the Office of Personnel Management. 

The 44-page lawsuit complaint includes an addendum with a chart showing the titles or descriptions of 49 “affected resource” website pages that it says were deleted because of the executive orders. The chart shows that just four of the sites were restored after initially being deleted.

 Of the 49 sites, 15 addressed LGBTQ-related health issues and six others addressed HIV issues, according to the chart.   

“The unannounced and unprecedented deletion of these federal webpages and datasets came as a shock to the medical and scientific communities, which had come to rely on them to monitor and respond to disease outbreaks, assist physicians and other clinicians in daily care, and inform the public about a wide range of healthcare issues,” the lawsuit states.

 “Health professionals, nonprofit organizations, and state and local authorities used the websites and datasets daily in care for their patients, to provide resources to their communities, and promote public health,” it says. 

Jose Zuniga, president and CEO of the International Association of Providers of AIDS Care (IAPAC), one of the organizations that signed on as a plaintiff in the lawsuit, said in a statement that the deleted information from the HHS websites “includes essential information about LGBTQ+ health, gender and reproductive rights, clinical trial data, Mpox and other vaccine guidance and HIV prevention resources.”

 Zuniga added, “IAPAC champions evidence-based, data-informed HIV responses and we reject ideologically driven efforts that undermine public health and erase marginalized communities.”

Lisa Amore, a spokesperson for Whitman-Walker Health, D.C.’s largest LGBTQ supportive health services provider, also expressed concern about the potential impact of the HHS website deletions.

 “As the region’s leader in HIV care and prevention, Whitman-Walker Health relies on scientific data to help us drive our resources and measure our successes,” Amore said in response to a request for comment from  the Washington Blade. 

“The District of Columbia has made great strides in the fight against HIV,” Amore said. “But the removal of public facing information from the HHS website makes our collective work much harder and will set HIV care and prevention backward,” she said. 

The lawsuit calls on the court to issue a declaratory judgement that the “deletion of public health webpages and resources is unlawful and invalid” and to issue a preliminary or permanent injunction ordering government officials named as defendants in the lawsuit “to restore the public health webpages and resources that have been deleted and to maintain their web domains in accordance with their statutory duties.”

It also calls on the court to require defendant government officials to “file a status report with the Court within twenty-four hours of entry of a preliminary injunction, and at regular intervals, thereafter, confirming compliance with these orders.”

The health organizations that joined the lawsuit as plaintiffs include the Washington State Medical Association, Washington State Nurses Association, Washington Chapter of the American Academy of Pediatrics, Academy Health, Association of Nurses in AIDS Care, Fast-Track Cities Institute, International Association of Providers of AIDS Care, National LGBT Cancer Network, and Vermont Medical Society. 

The Fast-Track Cities Institute and International Association of Providers of AIDS Care are based in D.C.

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U.S. Federal Courts

Federal judge scraps trans-inclusive workplace discrimination protections

Ruling appears to contradict US Supreme Court precedent

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Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas (Screen capture: YouTube)

Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas has struck down guidelines by the U.S. Equal Employment Opportunity Commission designed to protect against workplace harassment based on gender identity and sexual orientation.

The EEOC in April 2024 updated its guidelines to comply with the U.S. Supreme Court’s ruling in Bostock v. Clayton County (2020), which determined that discrimination against transgender people constituted sex-based discrimination as proscribed under Title VII of the Civil Rights Act of 1964.

To ensure compliance with the law, the agency recommended that employers honor their employees’ preferred pronouns while granting them access to bathrooms and allowing them to wear dress code-compliant clothing that aligns with their gender identities.

While the the guidelines are not legally binding, Kacsmaryk ruled that their issuance created “mandatory standards” exceeding the EEOC’s statutory authority that were “inconsistent with the text, history, and tradition of Title VII and recent Supreme Court precedent.”

“Title VII does not require employers or courts to blind themselves to the biological differences between men and women,” he wrote in the opinion.

The case, which was brought by the conservative think tank behind Project 2025, the Heritage Foundation, presents the greatest setback for LGBTQ inclusive workplace protections since President Donald Trump’s issuance of an executive order on the first day of his second term directing U.S. federal agencies to recognize only two genders as determined by birth sex.

Last month, top Democrats from both chambers of Congress reintroduced the Equality Act, which would codify LGBTQ-inclusive protections against discrimination into federal law, covering employment as well as areas like housing and jury service.

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