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Court strikes down DOMA in historic ruling

Anti-gay activist accuses Obama of ‘sabotaging’ case

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Melba Abreu & Beatrice Hernandez are plaintiffs in the case Gill et al. v. Office of Personnel Management et al. (Photo courtesy GLAD)

A federal court in Massachusetts has issued two decisions finding that part of the Defense of Marriage Act is unconstitutional in response to legal challenges against the statute.

Judge Joseph Tauro of the U.S. District Court of Massachusetts ruled July 8 in the case of Gill v. U.S. Office of Personnel Management that DOMA violates the Equal Protection Clause of the U.S. Constitution.

In his decision, Tauro writes that “only sexual orientation” differentiates married couples that can receive federal benefits and those who cannot.

“As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution,” he writes.

In a separate decision in the case of Commonwealth of Massachusetts v. Department of Health & Human Services, Tauro concludes that regulating marriage is a state’s right under the U.S. Constitution’s 10th Amendment. He says that DOMA violates this right for Massachusetts.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment,” Tauro writes. “For that reason, the statute is invalid.”

In a statement, Freedom to Marry Executive Director Evan Wolfson praised the court for its decision in the Gill case.

“Today’s ruling affirms what we have long known: federal discrimination enacted under DOMA is unconstitutional,” he said. “The decision will be appealed and litigation will continue. But what we witnessed in the courtroom cannot be erased: federal marriage discrimination harms committed same-sex couples and their families for no good reason.”

Brian Brown, president of the National Organization for Marriage, which opposes marriage rights for LGBT couples, criticized the decisions and Tauro’s willingness to overturn DOMA.

“With only Obama to defend DOMA, this federal judge has taken the extraordinary step of overturning a law passed by huge bipartisan majorities and signed into law by President Clinton in 1996,” Brown said. “A single federal judge in Boston has no moral right to decide the definition of marriage for the people of the United States.”

Brown attributed the rulings to the failure of U.S. Solicitor General Elena Kagan to defend DOMA adequately. Her nomination to become an associate justice for the U.S. Supreme Court is pending before the U.S. Senate.

“Under the guidance of Elena Kagan’s brief that she filed when she was solicitor general, Obama’s Justice Department deliberately sabotaged this case,” Brown said.

The rulings came in response to separate legal challenges filed last year by Massachusetts Attorney General Martha Coakley and Gay & Lesbian Advocates & Defenders.

During a conference call Thursday, Coakley said the court rulings were “a landmark decision” and a “very important step toward achieving equality for all married couples, particularly here in Massachusetts.”

“We believe that today is a victory for civil rights in Massachusetts and I hope progress toward the understanding of all as to why marriage equality is a civil rights issue,” she said.

Janson Wu, staff attorney for GLAD, said, “it’s almost certain” that both decisions will be stayed upon appeal to a higher court and that access to federal benefits for married same-sex couples right now is “almost somewhat an irrelevant point.”

“I think it’s safe to say that it’s likely that the judgment for both cases will not go into effect while the case is being appealed,” Wu said.

Both lawsuits in which the court reached decisions were aimed at Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages.

But Doug NeJaime, a gay law professor at Loyola Law School, said the result of the Gill case doesn’t necessarily mean an end to Section 3 of DOMA, but only the programs to which the plaintiff couples in the case were denied access.

“This decision itself, while it puts pressure on Congress to repeal DOMA and provide case law in which to have broader challenges, it’s just sort of an initial chipping away at Section 3,” he said.

Nan Hunter, a lesbian law professor at Georgetown University, said her understanding of the Gill lawsuit is that it “only deals with the particular programs that these plaintiffs were challenging.”

“However, if they sustain this victory on appeal, there won’t be anything left of Section 3 of DOMA,” she said. “It won’t make sense for a court to uphold it as to any other provisions of federal law.”

NeJaime said the Gill opinion could set precedent that would influence marriage lawsuits elsewhere. In particular, NeJaime noted a passage in which Tauro discusses the relationship between procreation and marriage.

“This court can readily dispose of the notion that denying federal recognition to same-sex marriages might encourage responsible procreation, because the government concedes that this objective bears no rational relationship to the operation of DOMA,” Tauro writes.

The judge adds “a consensus” has emerged among the medical and psychological communities that children raised by LGBT people “are just as likely to be well-adjusted as those raised by heterosexual parents.”

NeJaime said Tauro’s decision to make this point as part of his ruling is “very relevant to broader analysis of the right to marry for same-sex couples.”

“I think he’s going down that path in a way that other courts might look to it,” he said.

NeJaime said this reasoning could be applied in the case of Perry v. Schwarzenegger, a legal challenge against the ban on same-sex marriage in California that is pending before Judge Vaughn Walker in district court.

Although social conservative groups defending the ban in this case have used the argument that marriage is for procreation, NeJaime said the Gill decision can provide a reference to counter that rationale.

“I think Judge Walker can look to not only the federal government’s rejection of those rationales in the DOMA cases, but this judge’s reasoning about why that’s not a good interest anyway,” NeJaime said.

Appeals likely for lawsuits

According to GLAD, the next step in the Gill case is for the federal government to decide whether it will appeal to the U.S. First Circuit Court of Appeals. That decision is expected within the next 60 days.

Tracy Schamler, a spokesperson for the U.S. Justice Department, said last week the Obama administration was still “reviewing the decision.” Many observers expect the rulings to be appealed.

Gary Buseck, legal director for GLAD, said he believed the Justice Department would have to appeal the decisions.

“Everyone tells us — and it seems to be true — that the executive branch has a responsibility to defend acts of Congress and it would be very difficult for them not to take an appeal of this,” he said. “I suppose anything is technically possible, but I think it would be unusual for them — highly unusual — for them not to appeal this decision from the judge.”

NeJaime said he also believed the Justice Department would appeal the decisions, although he didn’t believe the administration is required to do so.

“It’s certainly conventional to see a case like this [go] up the appeals chain, but there’s instances in which the government loses at the district court level and then there’s a policy change, so there’s nothing that forecloses that,” he said.

Still, Buseck said having a win at a lower court is helpful going into appeal and that Tauro wrote a “strong opinion” that will be helpful if the case goes to a higher court.

“We’ve got a platform, which is about the best possible platform we can have going to the First Circuit,” Buseck said.

NeJaime said the plaintiffs would have an added edge upon appeal with the Gill case because Tauro didn’t apply heightened scrutiny or consider LGBT people a suspect class in his opinion.

“If you went down the path of there’s a fundamental right because of the family relationship or sexual orientation as a suspect class, it would provide a sort of threshold question for both the Court of Appeals and the Supreme Court to really say, ‘Oh, he got it wrong,’ and then the rest of the analysis then sort of goes out the window,” NeJaime said.

Hunter said she believed having the case be appealed and succeed at a higher court would be beneficial in the effort to overturn DOMA.

“To have DOMA struck down by just one judge’s opinion — it’s not a very strong basis for getting rid of the statute,” she said. “So personally — and this is probably a reflection that I’m pretty optimistic about the overcome of repeal — I think we may better off, frankly, if they do appeal it and it goes to the U.S. Court of Appeals and wins in the Court of Appeals.”

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National

LGBTQ groups largely praise Biden’s State of the Union speech

HRC president attended with House Minority Leader Hakeem Jeffries (D-N.Y.)

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President Joe Biden delivers his 2023 State of the Union speech on Feb. 7, 2023. (Washington Blade photo by Michael Key)

LGBTQ rights groups have largely praised President Joe Biden’s State of the Union speech that he delivered on Tuesday.

“It’s our duty to protect all the people’s rights and freedoms,” said Biden. “Make no mistake: If Congress passes a national abortion ban, I will veto it. Let’s also pass the bipartisan Equality Act to ensure LGBTQ Americans, especially transgender young people, can live with safety and dignity.” 

The Equality Act would add sexual orientation and gender identity to federal civil rights law. The bill has passed the U.S. House of Representatives in two previous Congresses, but did not come up for a vote in the U.S. Senate. 

“In re-upping his call for Congress to pass the Equality Act and protect transgender youth, the president is leading by example to expand freedom so no one is left behind,” GLAAD President Sarah Kate Ellis commented on Twitter. 

Likewise, Equality PAC, the political arm of the Congressional LGBTQ Equality Caucus, was committed to the president’s vision of a safer U.S. for LGBTQ+ people. 

“At a time where LGBTQ Americans, especially those who are trans, are increasingly under attack by right wing extremists, these [legal] protections have never been more dire,” remarked U.S. Reps. Mark Takano (D-Calif.) and David Cicilline (D-R.I.), who co-chair Equality PAC. “We remain committed to working with President Biden and members of Congress to pass the Equality Act and enshrine additional LGBTQ rights into law.” 

The National LGBTQ Task Force in its response to the State of the Union noted how all of the issues on which Biden touched — Social Security, fair wages, Medicaid expansion, access to education, reproductive rights and police reform — have the LGBTQ community “at the center of all the issues.” 

“LGBTQ people are often disproportionately impacted because of the discrimination our community faces every single day. LGBTQ people are not fully able to participate or benefit from all that our country has to offer. For too many queer people, the American dream is out of reach,” said National LGBTQ Task Force Executive Director Kierra Johnson. 

Research from the Trevor Project notes 36 percent of LGBTQ youth have reported they have been physically threatened or harmed due to either their sexual orientation or gender identity. Sixty percent of LGBTQ youth who wanted mental health care in the past year were not able to get it, and 89 percent of them said seeing LGBTQ representation in the media made them feel good about being LGBTQ.

Human Rights Campaign President Kelley Robinson, who attended the State of the Union alongside House Minority Leader Hakeem Jeffries (D-N.Y.), said “we appreciate that President Biden is making a point to focus national attention on this urgent topic and stand up for transgender kids, because we need our nation’s leaders to show up and prove that, collectively, we are greater than hate.” 

Log Cabin Republicans President Charles Moran had a far different take.

“Last night, all Americans heard from President Biden was a laundry list of expensive new spending bills and tired campaign slogans, couched between a series of lies about Republicans and the U.S. economy. Meanwhile, inflation is still wrecking American families, our debt is skyrocketing out of control, and nearly half of American families — including LGBT ones — are worse off financially than they were just a year ago,” said Moran in a statement. “Not surprisingly, we heard nothing from Biden condemning the woke, race-and-gender-obsessed forces coddled by his administration. LGBT conservatives are thankful that we now have a Republican House to put a stop to the Democrats’ radical policies and look forward to working with Republican leadership to advance our own pro-America, pro-equality and pro-freedom agenda.”

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Federal Government

Rachel Levine tackles bad information on COVID, gender-affirming care

Assistant health secretary is highest ranking transgender person in Biden administration

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Assistant Secretary of Health Rachel Levine (Washington Blade photo by Michael Key)

In a visit to one of America’s most prestigious institutions of higher learning, Adm. Rachel Levine answered questions and offered insight about two of the most controversial healthcare issues of this decade, long COVID-19 and gender-affirming care.

Long COVID is the mysterious phenomenon in which patients endure debilitating, long-term effects from being infected by the coronavirus and gender-affirming care, treatments for transgender youth that are being targeted by lawmakers nationwide.

“Long COVID is real,” said Levine, the assistant secretary for health at the U.S. Department of Health and Human Services, and the highest-ranking transgender official in the Biden administration. “We heard from patients who have suffered heart issues, lung issues, issues of fatigue and brain fog, after their COVID-19 infection. And we heard from providers at Yale who are forming a multidisciplinary clinic in order to evaluate and treat these patients.” 

In a public session held Monday at the Yale Law School, four of these “long haulers” shared their challenges with the admiral: Shortness of breath, pulmonary disorders, lifestyle and work limitations and disabilities that are hidden to most observers.

“Hearing the patients tell their stories is so meaningful,” she said, calling it a privilege to better understand the challenges they face.

“That helps us drive policy as well as research,” Levine said. 

“I was very active,” said Hannah Hurtenbach of Wethersfield, Conn., a 30-year-old registered nurse who was diagnosed with post-COVID cardiomyopathy, cognitive brain fog and pulmonary issues. “I loved hiking and being outside. I was constantly on the move and now I barely leave my couch. I barely leave my house and I can’t really handle even a part time job now when I used to work full time. So that has been really difficult at age 30 to be facing those sorts of issues that I never really anticipated feeling.”

Hurtenbach told the Washington Blade she appreciated Levine’s visit.

“Sharing my experience today with the admiral was probably one of the more highlight moments of this experience,” she said. “Knowing that the federal government is taking action, is paying attention, and listening to these stories means more to me than anything else, and especially knowing that what I’ve gone through over the last couple of years can be led and used into the future research and help others just like myself.”

A woman named Christine told the Blade that even though she is so impacted by long COVID that she needs assistance to walk and has to pause as she speaks because of her shortness of breath, she felt attending this event was worth all the struggle to get there.

“I’m so glad I came. I learned a lot from hearing from the others,” she said, who like her are trying to recover from long COVID.

Levine told the Blade that so far, she herself has not contracted COVID, and that she is double-vaccinated and double-boosted. With the president announcing the end of emergency COVID declarations on May 11, she said the administration is pushing Congress to approve extra funding for long COVID and other related needs. But how can she expect to get that through a House of Representatives full of anti-vaxxers, anti-maskers and COVID-deniers, including in GOP leadership?

“Long COVID is real and we hear you,” she said. “We plan to engage Congress to talk about the funding that we need. And we’ll continue to work. We do have to get past misinformation in this country, but we are here to give the correct information about COVID-19 and long COVID, and we’ll continue to engage Congress on that.”

Hurtenbach expressed disappointment in those colleagues in healthcare who came out publicly in opposing vaccines and mask mandates.

“I just wish they had paid better attention in school and learned more of the science,” the nurse said. “I wish they would trust the science that they are supposed to be promoting for their patients as well.” 

Following Monday morning’s public meeting, Levine held a private session with long COVID patients and Yale doctors, researchers, counselors, physical therapists and other providers. Then in the afternoon, the admiral spoke at another event, held at Yale Medical School: “A Conversation on LGBTQI+ Health and Gender-Affirming Care.” Although it was closed to press, Yale Asstistant Professor of Medicine Diane Bruessow attended the event and shared with the Blade what Levine told those gathered, which is that she remains positive and optimistic. 

“I think over time, things will change, and things will get better,” said Levine, adding the caveats, “I don’t know if they will get better everywhere in the United States. I also don’t know if it’s going to be quick. I think the next two years will be really, really hard.” Especially with more than 270 anti-trans pieces of legislation moving their way through state legislatures.

“But I am going to stay positive. I’m going to think that over time, things will improve,” Levine said, pledging that both she and the Biden administration would do everything they can to help families with trans kids. “I think the tide will turn.”

Levine: Long COVID is real

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National

Patrons of The Eagle NYC robbed of thousands

NYPD investigators believe the criminals used facial recognition to access the victims’ phones and funds once they were incapacitated

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The Eagle NYC (Screenshot/YouTube)

The New York City Police Department, (NYPD) confirmed that a series of robberies committed at The Eagle NYC, a Chelsea gay leather bar last Fall, had the three victims losing thousands of dollars after the criminals used facial recognition to access the victims’ phones.

NBC News Out correspondent Matt Lavietes reported the three men, who were in their late 30s and 40s, visited The Eagle NYC, on separate nights in October and November and were each robbed of $1,000 to $5,000, according to the NYPD’s deputy commissioner of public information. 

No arrests have been made and the investigation is ongoing, authorities said.

Capt. Robert Gault of the city’s 10th Precinct, who spoke about the incidents at a police community council meeting last week, told NBC News that NYPD investigators believe the criminals used facial recognition to access the victims’ phones and funds once they were incapacitated.

“What we think is happening with this scheme is they’re being lured away from the club, maybe to say, ‘Hey, you wanna come with me? I got some good drugs,’ or something like that,’” Gault said. “And then, once they get into a car to do whatever it is that they’re going to do, at some point or another, they don’t know what happened when they wake up.”

Criminals use facial recognition to patrons at NYC gay bar:

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