National
Supreme Court makes two pro-LGBT rulings
Non-discrimination, disclosure issues decided
The U.S. Supreme Court made pro-LGBT rulings in two cases during the final week of its term, which ended Monday.
Justices ruled in favor of the constitutionality of a California law school’s non-discrimination policy as well as state disclosure laws that would make public the names of those who signed a petition to put an anti-gay referendum on the Washington State ballot.
In the case of Christian Legal Society v. Martinez, the court upheld Monday in a 5-4 decision the University of California, Hastings College of Law’s non-discrimination policy against a legal challenge from a Christian group that aimed to discriminate against LGBT people.
The school’s Hastings Christian Fellowship sought to overturn a non-discrimination policy to maintain its status as an official school group while prohibiting LGBT people from holding positions as officers. The group contended the school’s policy violated the chapter’s freedom of association and speech under the First Amendment.
But U.S. Associate Justice Ruth Bader Ginsburg — who wrote the majority opinion in the ruling — said the school’s policy is constitutional because it’s “a reasonable, viewpoint-neutral condition on access to the student-organization forum.”
“In requiring [Christian Legal Society] — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,” she writes.
Joining Ginsburg in the majority opinion were Associate Justices Anthony Kennedy, Stephen Breyer and Sonia Sotomayor. Associate Justice John Paul Stevens marked his final day on the bench by filing a concurring opinion.
While upholding Hastings’ policy, the court also remanded to the Ninth Circuit Court of Appeals an assertion by the Christian Legal Society that Hastings has been selectively applying its non-discrimination policy.
Associate Justice Samuel Alito filed the dissent. In his opinion, Alito writes that the Supreme Court didn’t properly address the constitutionality of Hastings’ policy and is setting precedent that could stifle free speech.
“Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups,” Alito writes.
Joining Alito in the dissenting opinion were Chief Justice John Roberts as well as Associate Justices Antonin Scalia and Clarence Thomas.
In the majority opinion, Ginsburg notes as an official group, the Christian Legal Society chapter would be entitled to financial assistance from the school derived from mandatory student fees. She says current policy “ensures that no Hastings student is forced to fund a group that would reject her as a member.”
Additionally, Ginsburg emphasizes that although Hastings may exclude the Christian Legal Society chapter as an official group — or as a registered student organization — the organization still has some capacity to meet and communicate on campus.
“In this case, Hastings offered [Christian Legal Society] access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events,” Ginsburg writes. “Although [Christian Legal Society] could not take advantage of [certain] methods of communication … the advent of electronic media and social-networking sites reduces the importance of those channels.”
In a statement, Christopher Stoll, senior attorney for the National Center of Lesbian Rights, said the decision “affirmed the longstanding doctrine” that non-discrimination policies don’t “violate free speech when applied in a consistent and even-handed way.”
“The court rejected the dangerous argument that anti-gay groups must be given a special exemption from non-discrimination policies,” Stoll said.
NCLR was among the groups representing Outlaw, Hastings’ LGBT student group, which intervened to defend Hastings’ non-discrimination policy.
Paul Smith, who represented Outlaw, said all the respondents are “gratified” by the court’s decision said it reflects the views articulated in briefs to the court.
“The Hastings policy that all recognized and subsidized student groups have to be open to all comers is designed to … assure that educational opportunities are equally open to all, and … promote the open interchange of ideas among students,” he said.
The Hastings College of Law and the Christian Legal Society didn’t immediately respond to the Blade’s request for comment.
In a separate decision June 24, the court ruled against people seeking to keep secret the names of people who last year signed a petition to put an anti-gay referendum on the Washington State ballot.
The court determined 8-1 in Doe v. Reed that public disclosure of referendum petitions doesn’t — as a general rule — violate the First Amendment rights of signers.
But the decision left room for anti-gay activists to succeed at a lower court on the more focused question of whether making public the signatures for Referendum 71 specifically runs contrary to the U.S. Constitution. Roberts wrote the majority opinion in the decision. The sole dissenting voice in ruling came from Thomas.
The initiative in question, Referendum 71, came before Washington State residents in 2009 and threatened to abrogate the expansion of the state’s domestic partner registry. But 53 percent of the electorate voted in favor of upholding the law, keeping the registry in place.
Concurrent with the campaign against the law, people who put the anti-gay initiative on the ballot — led by Protect Marriage Washington — challenged Washington State’s Public Records Act, which requires public disclosure of the names of petition signers who put referenda on the ballot.
The U.S. District Court of the Western District of Washington issued a preliminary injunction blocking the publication of signatures, and the issue made its way to the Supreme Court.
Plaintiffs argued the law could put people who signed the petition in danger after their names became public. In defense of the statute, Washington State argued disclosure contributes to electoral integrity of the ballot process and allows the public to double-check in case a mistake is made.
Roberts affirms in the majority opinion the arguments that public disclosure promotes electoral integrity and concludes the disclosure law enables the public to find potential mistakes or instances of forgery.
“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” he writes. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”
Roberts also rejects the assertion from plaintiffs that the court should overturn the disclosure law on the basis that disclosure of the names of people who signed the Referendum 71 petition would place these signers in danger.
The chief justice says the question before the court isn’t whether “disclosure violates the First Amendment with respect to those who signed the R-71 petition,” but whether this disclosure “in general violates the First Amendment rights of those who sign referendum petitions.”
“The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R-71 petition, or on similarly controversial ones,” Roberts writes.
Roberts says the court must reject this broad challenge to all disclosure laws, but says this ruling doesn’t necessarily “foreclose a litigant’s success” in a narrower challenge before the district court. The chief justice recalls how the court previously determined withholding names may be appropriate in some instances with “reasonable probability” that individuals would be harassed.
In a statement, Anne Levinson, chair of Washington Families Standing Together, which fought to maintain the state’s domestic partnership law, praised the high court’s decision.
She said the Supreme Court made clear that public disclosure laws ensure “measures are not put on the ballot by fraudulent means or mistake.”
“Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights,” she said. “Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error.”
But Larry Stickney, president of the Washington Values Alliance, said he’s “optimistic” anti-gay activists will be able to keep the petition names secret following action from the district court.
“Likely we’re going to be back in district court and we’ll be able to bring out some of the harassment and intimidation efforts that were made against Protect Marriage Washington,” he said. “We’re happy that that effort will carry on.”
Levinson dismissed the idea that people working on the campaign to overturn the domestic partner registry faced harassment and said there’s “absolutely no evidence of harassment” of signers.
“What the petitioners cite to by way of threats or other harassment, they talk about their campaign manager or other leadership in their campaign,” she said. “Those are the folks like me who were debating on TV or radio or leading a campaign effort, so that’s irrelevant to making any case about petition signers.”
Jon Davidson, legal director for Lambda Legal, said he didn’t think plaintiffs had a shot keeping the names of petitions signers under wraps in light of the “reasonable probability” standard the Supreme Court established.
“I think they are very unlikely to have any success because the standard that the Supreme Court imposed here is — in a particular case — you can only prevent disclosure if you can show a reasonable probability that disclosure will subject to threats, harassment or reprisal,” he said. “So not the possibility — not that it could happen — but a reasonable probability that it will happen.”
National
LGBTQ asylum seeker ‘forcibly removed’ from US, sent to El Salvador
Immigrant Defenders Law Center represents Venezuelan national
An immigrant rights group that represents an LGBTQ asylum seeker from Venezuela says the Trump-Vance administration on March 15 “forcibly removed” him from the U.S. and sent him to El Salvador.
Immigrant Defenders Law Center Litigation and Advocacy Director Alvaro M. Huerta during a telephone interview with the Washington Blade on Tuesday said officials with U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection alleged his organization’s client was a member of Tren de Aragua, a Venezuela-based gang, because of his tattoos and no other information.
“It’s very flimsy,” said Huerta. “These are the types of tattoos that any artist in New York City or Los Angeles would have. It’s nothing that makes him a gang member.”
The White House on Feb. 20 designated Tren de Aragua an “international terrorist organization.”
President Donald Trump on March 15 invoked the Alien Enemies Act of 1798, which the Associated Press notes allows the U.S. to deport “noncitizens without any legal recourse.”
“I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA (Tren de Aragua), are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as alien enemies,” said Trump in a proclamation that announced his invocation of the 18th century law.
The asylum seeker — who the Immigrant Defenders Law Center has not identified by name because he is “in danger” — is among the hundreds of Venezuelans who the U.S. sent to El Salvador on March 15.
Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia temporarily blocked the deportations. The AP notes the flights were already in the air when Boasberg issued his ruling.
Huerta said U.S. officials on Monday confirmed the asylum seeker is “indeed in El Salvador.” He told the Blade it remains unclear whether the asylum seeker is in the country’s Terrorism Confinement Center, a maximum-security prison known by the Spanish acronym CECOT.
‘We couldn’t find him’
Huerta said the Immigrant Defenders Law Center client fled Venezuela and asked for asylum in the U.S.
The asylum seeker, according to Huerta, passed a “credible fear interview” that determines whether an asylum claim is valid. Huerta said U.S. officials detained the asylum seeker last year when he returned to the country from the Mexican border city of Tijuana.
Huerta told the Blade the asylum seeker was supposed to appear before an immigration judge on March 13.
“We couldn’t find him,” said Huerta.
He noted speculation over whether Trump was about to invoke the Alien Enemies Act, and the Immigrant Defenders Law Center “started getting concerned that maybe he was caught up in this situation.”
“He’s an LGBT individual who is an artist in Venezuela,” said Huerta.
Neither ICE nor CBP have responded to the Blade’s request for comment.
Huerta said it is “hard to say” whether the asylum seeker has any legal recourse.
“He still has an ongoing case in immigration court here,” said Huerta, noting the asylum seeker’s attorney was in court on Monday, and has another hearing in two weeks. “Presumably they should have to allow him to appear, at least virtually, for court because he still has these cases.”
Huerta noted the U.S. since Trump took office has deported hundreds of migrants to Panama; officials in the Central American country have released dozens of them from detention. Migrants sent to the Guantánamo Bay naval base in Cuba have returned to detention facilities in the U.S.
“Something where the government, kind of unliterally, can just say that someone is a gang member based on tattoos, without any offer of proof, without having to go to court to say that and then take them externally to what effectively a prison state (El Salvador), it certainly is completely just different than what we’ve seen,” Huerta told the Blade.
Huerta also spoke about the Trump-Vance administration’s overall immigration policy.
“The Trump administration knows exactly what they’re doing when it comes to scapegoating immigrants, scapegoating asylees,” he said. “They have a population that, in many ways, is politically powerless, but in many other ways, is politically powerful because they have other folks standing behind them as well, but they’re an easy punching bag.”
“They can use this specter of we’re just deporting criminals, even though they’re the ones who are saying that they’re criminal, they’re not necessarily proving that,” added Huerta. “They feel like they can really take that fight and run with it, and they’re testing the bounds of what they can get away with inside and outside of the courtroom.”
National
Kennedy Center official slams Harvey Fierstein’s ban claim as ‘total lie’
Grenell invites iconic gay actor to perform ‘Hairspray’
Richard Grenell, who was appointed president and interim executive director of the John F. Kennedy Center for the Performing Arts by President Trump, pushed back against Harvey Fierstein’s claim of being banned from the Kennedy Center, calling it “a total lie” in a new X post.
On Wednesday, gay icon and Tony Award-winning actor Harvey Fierstein posted on Instagram, claiming to have been “banned from THE KENNEDY CENTER.” In the post, Fierstein shared a picture of himself walking in the 1979 Christopher Street Liberation Day parade alongside LGBTQ rights activist Marsha P. Johnson. In the caption, he alleged that Trump’s takeover of the Kennedy Center was the reason for his ban, calling it an attack on free speech and a threat to democracy.
The Blade emailed the Kennedy Center’s public relations team, seeking confirmation of Fierstein’s claim and an official statement from the cultural center. More than an hour later, in a separate email that did not directly address the original request, Brendan Padgett, the Kennedy Center’s director of Public Relations, responded with a link to a post on his boss Grenell’s X account.
“Making sure you saw this,” Padgett’s email read, followed by a link to Grenell’s post.
“Hey, @HarveyFierstein This is a total lie,” Grenell wrote in the post. “Whoever told you this (because you obviously didn’t do your own research) should be fired from your team for purposefully making you look foolish.”
Grenell’s post, uploaded the morning after Fierstein’s initial claim, included screenshots of Fierstein’s Instagram post. Grenell went on to assert that, like Fierstein, he had been a fighter “for equality for decades,” citing his position as the first openly gay member of a U.S. president’s Cabinet as proof. (Grenell was never confirmed by the Senate; the first openly gay Senate-confirmed Cabinet official is Pete Buttigieg, former Secretary of Transportation.)
“You aren’t banned,” Grenell continued. “In fact, come do Hairspray or La Cage here at the Kennedy Center. This is your personal invite. Let’s meet—if, however, you can handle diverse opinions and want to be inclusive of everyone, that is.”
The Washington Blade reached out to both Harvey Fierstein and Brendan Padgett for comment on the ongoing situation. Padgett responded, stating, “No comment aside from the Kennedy Center President’s post.” Fierstein has yet to respond.
National
Trump administration considering closing HIV prevention agency: reports
Sources say funding cuts possible for CDC
The Department of Health and Human Services is considering closing the HIV Prevention Division of the U.S. Centers for Disease Control and Prevention and transferring some of its programs to a different agency, according to a report by the New York Times.
The Times and Politico cited government sources who spoke on condition of not being identified as saying plans under consideration from the administration also call for possible funding cuts in the domestic HIV prevention program following funding cuts already put in place for foreign U.S. HIV programs.
“It’s not 100 percent going to happen, but 100 percent being discussed,” the Times quoted one of the sources as saying.
News of the possible shutdown of the HIV Prevention Division and possible cuts in HIV prevention funds prompted 13 of the nation’s leading LGBTQ, HIV, and health organizations to release a joint statement on March19 condemning what they said could result in a “devastating effect” on the nation’s progress in fighting AIDS.
Among the organizations signing on to the joint statement were D.C.’s Whitman-Walker Health and the Los Angeles LGBT Center.
Carl Schmid, executive director of the HIV+ Hepatitis Policy Institute, which opposes funding cuts or curtailment in domestic AIDS programs, points out in a separate statement that it was President Trump during his first term in office who put in place the HIV Epidemic Initiative, which calls for ending the HIV epidemic in the U.S. by 2030.
That initiative, which Trump announced in his 2019 State of the Union address, is credited with having reduced new HIV infections nationwide by 30 percent in adolescents and young adults, and by about 10 percent in most other groups, according to the Times report on possible plans to scale back the program.
In a statement released to Politico, HHS spokesperson Andrew Nixon said, “HHS is following the Administration’s guidance and taking a careful look at all divisions to see where there is overlap that could be streamlined to support the President’s broader efforts to restructure the federal government.”
“No final decision on streamlining CDC’s HIV Prevention Division has been made,” Nixon said in his statement.
“An effort to defund HIV prevention by this administration would set us back decades, cost innocent people their lives and cost taxpayers millions,” said Kelley Robinson, president of the Human Rights Campaign, the nation’s largest LGBTQ advocacy organization, in a March 19 statement.
“The LGBTQ+ community still carries the scars of the government negligence and mass death of the HIV/AIDS epidemic,” Robinson said. “We should be doubling down on our investment to end the HIV epidemic once and for all, not regressing to the days of funeral services and a virus running rampant,” she said.
“We are deeply concerned by the Trump administration’s reckless moves to defund and de-prioritize HIV prevention,” the statement released by the 13 organizations says. “These abrupt and incomprehensible possible cuts threaten to reverse decades of progress, exposing our nation to a resurgence of a preventable disease with devastating and avoidable human and financial costs,” the statement says.
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