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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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State Department

State Department hosts intersex activists from around the world

Group met with policy makers, health officials, NGOs

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The State Department last week hosted a group of intersex activists from around the world. (Courtesy photo)

The State Department last week hosted five intersex activists from around the world.

Kimberly Zieselman, a prominent intersex activist who advises Jessica Stern, the special U.S. envoy for the promotion of LGBTQ and intersex rights abroad, brought the activists to D.C.

• Morgan Carpenter, co-founder and executive director of Intersex Human Rights Australia

• Natasha Jiménez, an intersex activist from Costa Rica who is the general coordinator of Mulabi, the Latin American Space for Sexualities and Rights

• Julius Kaggwa, founder of the Support Initiative for People with Atypical Sex Development Uganda

• Magda Rakita, co-founder and executive director of Fujdacja Interakcja in Poland and co-founder of Interconnected UK

• Esan Regmi, co-founder and executive director of the Campaign for Change in Nepal.

Special U.S. Envoy for Global Youth Issues Abby Finkenauer and Assistant Health Secretary Rachel Levine are among the officials with whom the activists met.

Zieselman told the Washington Blade on Sept. 21 the activists offered State Department officials an “intersex 101” overview during a virtual briefing.

More than 60 Save the Children staffers from around the world participated in another virtual briefing. Zieselman noted the activists also met with Stern, U.N. and Organization of American States officials, funders and NGO representatives while in D.C.

“The people we met were genuinely interested,” Rakita told the Blade.

Stern in an exclusive statement to the Blade said “the visiting intersex activists clearly had an impact here at State, sharing their expertise and lived experience highlighting the urgency to end human rights abuses, including those involving harmful medical practices against intersex persons globally.” Andrew Gleason, senior director for gender equality and social justice at Save the Children US, in a LinkedIn post he wrote after attending his organization’s meeting with the activists echoed Stern.

“There are many learnings to recount from today’s discussion, but one thing is clear, this is unequivocally a child rights issue, and one that demands attention and action at the intersection of LGBTQI+ rights, reproductive rights and justice, disability justice and more,” wrote Gleason. “Gratitude to the panelists for sharing such poignant testimonies and providing insights into what organizations like ours can do to contribute to the broader intersex movement; and thank you to Kimberly for your leadership and bringing this group together.”

The activists’ trip to D.C. coincided with efforts to end so-called sex “normalization” surgeries on intersex children.

Greek lawmakers in July passed a law that bans such procedures on children under 15 unless they offer their consent or a court allows them to happen. Doctors who violate the statute face fines and prison.

Germany Iceland, Malta, Portugal and Spain have also enacted laws that seek to protect intersex youth. 

A law that grants equal rights and legal recognition to intersex people in Kenya took effect in July 2022. Lawmakers in the Australian Capital Territory earlier this year passed the Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2023.

Intersex Human Rights Australia notes the law implements “mechanisms to regulate non-urgent medical care to encourage child participation in medical decisions, establish groundbreaking oversight mechanisms and provide transparency on medical practices and decision making.” It further points out the statute “will criminalize some deferrable procedures that permanently alter the sex characteristics of children” and provides “funding for necessary psychosocial supports for families and children.”

“It’s amazing,” Carpenter told the Blade when discussing the law and resistance to it. “It’s not perfect. There was some big gaps, but physicians are resisting every step of the way.”

The State Department in April 2022 began to issue passports with an “X” gender marker.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as non-binary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

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Federal Government

Federal government prepares for looming shutdown

White House warns of ‘damaging impacts across the country’

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U.S. Capitol Building (Washington Blade photo by Michael Key)

However remote they were on Monday, odds of avoiding a government shutdown were narrowed by Thursday evening as House Republicans continued debate over their hyper-partisan appropriations bills that stand no chance of passage by the Upper Chamber.

As lawmakers in the Democratic controlled Senate forged ahead with a bipartisan stop-gap spending measure that House GOP leadership had vowed to reject, the federal government began bracing for operations to grind to a halt on October 1.

This would mean hundreds of thousands of workers are furloughed as more than 100 agencies from the State Department to the Advisory Council on Historic Preservation roll out contingency plans maintained by the White House Office of Management and Budget. On Thursday the Office of Personnel Management sent out memos to all agencies instructing them to ready for a shutdown on Sunday.

Before 1980, operations would continue per usual in cases where Congress failed to break an impasse over spending, as lapses in funding tended to last only a few days before lawmakers brokered a deal.

Since then, the government has shut down more than a dozen times and the duration has tended to become longer and longer.

“Across the United States, local news outlets are reporting on the harmful impacts a potential government shutdown would have on American families,” the White House wrote in a release on Thursday featuring a roundup of reporting on how the public might be affected.

“With just days left before the end of the fiscal year, extreme House Republicans are playing partisan games with peoples’ lives and marching our country toward a government shutdown that would have damaging impacts across the country,” the White House said.

The nature and extent of that damage will depend on factors including how long the impasse lasts, but the Biden-Harris administration has warned of some consequences the American public is likely to face.

Transportation Secretary Pete Buttigieg, for example, warned: “There is no good time for a government shutdown, but this is a particularly bad time for a government shutdown, especially when it comes to transportation.”

Amid the shortage of air traffic controllers and efforts to modernize aviation technology to mitigate flight delays and cancellations, a government shutdown threatens to “make air travel even worse,” as Business Insider wrote in a headline Thursday.

Democratic lawmakers including California Congresswoman Barbara Lee and Maxine Waters, meanwhile, have sounded the alarm in recent weeks over the consequences for the global fight against AIDS amid the looming expiration, on Oct. 1, of funding for PEPFAR, the President’s Emergency Plan for AIDS Relief.

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Federal Government

QAnon follower pleads guilty to threatening member of Congress

Conspiracy movement claims Satan-worshipping pedophiles secretly rule the world

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QAnon banner at a pro-gun rally in Richmond, Va., in 2020. (YouTube screenshot from Anthony Crider)

A New Mexico man has entered a plea deal after being charged with a federal criminal complaint of making threats through interstate communications directed at a member of Congress.

Federal prosecutors charged Michael David Fox, a resident of Doña Ana County, for calling the Houston district office of an unnamed member of Congress on or about May 18, 2023, and uttering threats that included knowingly threatening to kill an active member of Congress.

The plea agreement was brought before U.S. Magistrate Judge Damian L. Martinez of U.S. District Court in New Mexico in the Las Cruces by Fox’s attorney from the Federal Public Defender’s Office in August.

According to the criminal complaint as outlined by a Federal Bureau of Investigation criminal investigator for the Albuquerque Field Office, Las Cruces Resident Agency, on May 18 at approximately 9:04 p.m. Fox called the office of a congresswoman for the District of Texas, U.S. House of Representatives (Victim One/”V1″), who is from Houston. The call was received by V1’s office.

In the phone call Fox stated “Hey [Vl], you’re a man. It’s official. You’re literally a tranny and a pedophile, and I’m going to put a bullet in your fucking face. You mother fucking satanic cock smoking son of a whore. You understand me you fucker?” 

Law enforcement was able to trace the call back to Las Cruces, N.M., and it was believed that Fox was the user of cell phone account used to make the call. According to the FBI agents who interviewed Fox, he admitted to making the call.

Fox acknowledged that the threat was direct but claimed that he did not own any guns. Fox
claimed to be a member of the Q2 Truth Movement, the Q Movement. Fox explained these
movements believe all over the world there were transgender individuals running
governments, kingdoms and corporations. 

Fox told the FBI that there is a plan called “Q the Plan to Save the World” which he learned about from an online video. Fox claimed that he believed Q was going to engage in the “eradication” of the people who were causing all the world’s misery. He believed that part of the eradication had already happened.

Fox explained that he had run Vl’s skull features through forensic analysis and determined
that Vl was born male and is now trans. Fox discussed his military service with the
U.S. Air Force, “Q the Plan to Save the World,” and how God communicates using
numbers. 

Fox continued to reiterate several different types of conspiracy theories indicating
extreme far right ideologies as his explanation for why he conducted the phone call to
threaten V1.

According to the FBI, Fox rescinded his threat against Vl and apologized. Fox claimed he was not intoxicated or under the influence of drugs when he made the call. Fox stated he understood how Vl would feel threatened by his phone call, and he acknowledged that anyone he knew or cared about would also be concerned with such a threat.

The charge of interstate threatening communications carries a maximum penalty of five years in federal prison.

QAnon began in 2017, when a mysterious figure named “Q” started posting on the online message board 4chan, claiming to have inside access to government secrets. Since then, QAnon has grown into a conspiracy movement that claims Satan-worshipping pedophiles secretly rule the world. It is claimed by QAnon adherents that former President Donald Trump is the only person who can defeat them. 

Brooklyn, N.Y.-based journalist Ana Valens, a reporter specializing in queer internet culture, online censorship and sex workers’ rights noted that Fox appears to be a “transvestigator.” Valens noted that the transvestigation conspiracy theory is a fringe movement within QAnon that claims the world is primarily run by trans people. Phrenological analysis is common among transvestigators, with a prominent focus on analyzing celebrities for proof that they are trans.

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