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Has the gay agenda been shelved?

Further action on LGBT bills looking less likely this Congress

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On the long-stalled Employment Non-Discrimination Act, U.S. Rep. Barney Frank said ‘we’re still trying to figure out a way to get that done.’ (Washington Blade photo by Michael Key)

The limited time remaining in the legislative calendar for this Congress is raising questions about whether lawmakers will pass any further pro-LGBT bills before year’s end — and whether it will be politically feasible to pass such bills next year.

Congress advanced LGBT-related legislation last year when it passed hate crimes protections. This year, a measure that would lead to repeal of “Don’t Ask, Don’t Tell” seems likely to reach President Obama’s desk.

Still, some LGBT activists and voters are frustrated that Congress has taken no action to advance the Employment Non-Discrimination Act. Supporters of the legislation have said several times a vote was imminent, but no such action has yet been taken.

Other pending measures include the Domestic Partnership Benefits & Obligations Act, which would allow LGBT federal workers to receive spousal benefits for their same-sex partners, as well as the Uniting American Families Act and repeal of the Defense of Marriage Act.

Further complicating the situation is the specter of reduced Democratic majorities in the next Congress — or even a Republican takeover — and whether measures unaddressed this year would be viable in 2011.

Despite the limited time remaining this year, some LGBT rights supporters are hopeful that Congress will move forward with additional legislation. U.S. Rep. Barney Frank (D-Mass.), a gay lawmaker and House sponsor of ENDA, expressed optimism about the bill passing the House this year.

“That’s going to be next thing we’ll turn our attention to,” Frank said. “We have the speaker’s support and we’re still trying to figure out a way to get that done.”

The scheduling for a House vote on ENDA remains an issue. House Speaker Nancy Pelosi earlier told the Blade that a House vote on ENDA wouldn’t occur until Congress finishes legislative action on “Don’t Ask, Don’t Tell.”

Drew Hammill, a Pelosi spokesperson, said ENDA remains “a top priority for the speaker,” but a vote on the bill before work on “Don’t Ask, Don’t Tell” is complete “jeopardizes both initiatives.”

“Until then, we should encourage the Senate to develop a course for ENDA to ensure that when the House passes the legislation, the Senate can move quickly to send the legislation to the president’s desk,” Hammill said.

Frank said efforts toward repealing “Don’t Ask, Don’t Tell” displaced ENDA in the batting order for Congress because the fiscal year 2011 defense authorization bill came to lawmakers before a vote could happen on ENDA.

“If the defense authorization hadn’t come up earlier, we might have been able to do ENDA first,” he said.

Frank noted that he thinks the votes exist in the House to pass a trans-inclusive ENDA, but he wouldn’t give a timetable for when the legislation would move forward in Congress because he didn’t want to tip off opponents of the bill.

Michael Cole, a Human Rights Campaign spokesperson, said a House vote on ENDA is among the pro-LGBT items his organization has pressed for in the time remaining in this year’s legislative calendar.

“We’re certainly interested in seeing the House take a vote on ENDA,” Cole said. “We’ve been advocating for that for a long time, and as recess comes, we’ll be doing a lot of work to make sure our members are getting in touch with members of Congress to push for a vote on it.”

But if the House manages to pass ENDA this year, getting the legislation through the Senate remains a significant challenge. Sources have said 60 votes are lacking in the Senate to overcome a filibuster on the legislation. Also, because the Senate allows non-germane amendments, opponents of the bill could attach additional measures in an attempt to block its passage.

Still, Frank said he believes passage of ENDA in the Senate remains a possibility.

“If you ask them if they think they can pass it, they’ll say ‘no,’ so the important thing to do is for us [in the House] to try [to] pass it and send it over there, so they can’t just avoid it,” Frank said.

Activists also foresee a possibility of passing the Domestic Partnership Benefits & Obligations Act before year’s end.

Cole said the legislation, as well as the Tax Equity for Health Plan Beneficiaries Act, which would eliminate the tax penalty paid on employer-provided health insurance for domestic partners, could be made part of upcoming omnibus authorization or appropriations bills.

“We’re following what the plans appear to be on the Hill to see how we might be able to get those pieces of legislation [advanced] as part of them,” Cole said.

Frank also acknowledged the possibility of passing the Domestic Partnership Benefits & Obligations Act and said that legislation is “in serious conversation.”

Still, Frank noted the bill comes with a price tag — estimated at one time by the U.S. Office of Personnel Management to be $56 million a year — and that concerns associated with raising the federal deficit may cause problems in passing the bill.

Frank said finding a way to offset the legislation’s cost remains an issue for the Domestic Partnership Benefits & Obligations Act and “we have to find a way to pay for that.”

Whatever progress this Congress makes on passing pro-LGBT bills, recent polls are casting doubts on whether enough Democratic lawmakers will retain their seats next Congress to pass such bills.

Several recent polls have shown considerable opposition toward Democrats and the Obama administration as persistent unemployment and concerns about government spending linger across the country.

White House Press Secretary Robert Gibbs gained media attention and inspired consternation among Democratic House members when, during an appearance earlier this month on NBC’s “Meet the Press,” he said Republicans could regain control of the House.

“I think people are going to have a choice to make in the fall,” Gibbs said. “But I think there’s no doubt there are enough seats in play that could cause Republicans to gain control. There’s no doubt about that.”

Larry Sabato, a political scientist at the University of Virginia, is projecting that Republicans will win seven seats in the Senate and 32 seats in House after the election.

Because of this potential shift, Sabato said passage of more pro-LGBT bills next Congress is unlikely if it doesn’t happen this year.

“If these pieces of legislation don’t pass now, when both houses have swollen Democratic majorities, they certainly aren’t going to pass in the next Congress, when Democrats will have narrow majorities, or even be in the minority,” Sabato said.

Sabato said the loss of a half-dozen Democratic seats in the Senate could be enough to “kill these bills” entirely in the next Congress because proponents wouldn’t be able to find 60 votes to thwart a filibuster.

But Frank said the possibility of passing more pro-LGBT legislation in a future Congress is unknown because the fallout of the November elections is yet to be seen.

“I don’t think there’s any question there will be Republican gains in both chambers,” he said. “But what kind of gains? How much? Three senators? Eight senators? Fifteen representatives? Thirty-five representatives?”

Frank also said some members of Congress that would lose in the upcoming election wouldn’t “be supportive of ENDA anyway.”

Additionally, he said Congress could more easily take up other pro-LGBT bills in the future after items like hate crimes and “Don’t Ask, Don’t Tell” are off the table.

“To some extent, the more you have to work on, the harder it is to do any one of them,” he said.

Cole said although no one knows what the future holds for support for pro-LGBT legislation after year’s end, he noted several supportive incumbents are in danger of losing their seats.

“The thing to keep in mind, though, is cobbling together a pro-LGBT majority for any piece of legislation has never been a slam dunk,” Cole said. “It’s not necessarily about party affiliation — it’s about people who have taken stances toward equality measures.”

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U.S. Supreme Court

Supreme Court hears oral arguments in 303 Creative case

Dangerous implications for LGBTQ consumers

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday heard oral arguments in 303 Creative v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce certain nondiscrimination rules against purveyors of goods and services.

The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado’s anti-discrimination laws, which include sexual orientation as a protected class.

Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom (ADF), reaches the Supreme Court following the ruling against Smith from the 10th Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.

The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the Commission exhibited hostility toward the religious views of the bakery that refused to design a custom wedding cake for a same-sex couple.

The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.

Monday’s oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues at play in 303 Creative.  

Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court’s ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to “Don’t Ask, Don’t Tell,” refuse to grant military recruiters access to their resources.

ADF CEO, President and General Counsel Kristen Waggoner cited the Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.

Much of the discussion during Monday’s oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events – i.e., same-sex weddings – are tantamount to refusing goods and services to members of a protected class of people under the state’s non-discrimination laws.

LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative  

ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, the National Center for Lesbian Rights, Lambda Legal, and the Human Rights Campaign.

“Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado,” wrote the National LGBTQ Task Force in a statement addressing Monday’s oral arguments.

Liz Seaton, the group’s policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. “The brief’s most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers’ Committee for Civil Rights Under Law,” Seaton said. “Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country.”

HRC’s statement on Monday touched on similar themes:

“Granting the unprecedented ‘free speech exemption’ sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long standing constitutional and civil rights law. It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It’s crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American.”

Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court’s ruling on 303 Creative:

“…the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws’ applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.”

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Congress

Jim Kolbe dies at 80

Former Ariz. congressman first openly gay Republican House member

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Rep. Jim Kolbe (R-Ariz.) speaks at a press conference on Feb. 28, 2013 for the filing of an amicus brief supporting the overturning of the Defense of Marriage Act. (Blade file photo by Michael Key)

Former Republican Congressman James (Jim) Thomas Kolbe, who represented Southern Arizona in Congress for 22 years, died Saturday of a stroke at the age of 80 his husband Hector Alfonso confirmed to Arizona media outlets.

“He belongs to so many people,” his husband said through tears on Saturday. “He gave his life for this city. He loved Tucson, he loved Arizona.”

Republican Arizona Gov. Doug Ducey ordered flags at all state buildings be lowered to half-staff until sunset Sunday in honor of the former congressman. In a series of tweets the Arizona governor lauded Kolbe’s record of public service.

Kolbe was the first openly serving gay Republican in the U.S. House of Representatives having served from 1985 to 2007.  During his 22-year tenure he served as chair of the Subcommittee on Foreign Operations, Export Financing and Related Programs of the House Appropriations Committee.

Former congressman Jim Kolbe (R-Ariz.) (Blade file photo by Michael Key)

In 1996, Kolbe held a press conference and outed himself after his vote for the Defense of Marriage Act. This, according to political journalist Jake Tapper, was owed to the fact that Kolbe was under the impression he was about to be outed by a gay publication.

Addressing a gathering of Log Cabin Republicans and other gay Republicans in 1997, he said he didn’t want to be a poster child for the gay movement.

“Being gay was not — and is not today — my defining persona,” Kolbe said during his first speech as an openly gay GOP lawmaker. He also sat on the national advisory board of the Log Cabin Republicans.

In 2013, however, Kolbe was a signatory to an amicus brief in support of overturning California’s Proposition 8.

In a private ceremony in 2013, after being together for eight years, Kolbe and Alfonso were married.

Alfonso, a Panamanian native who came to the U.S. on a Fulbright scholarship to pursue studies in special education, had been a teacher for two decades. The couple’s nuptials were held at a private event at the Cosmos Club on Massachusetts Avenue.

“Two decades ago, I could not have imagined such an event as this would be possible,” Kolbe told the Washington Blade in an interview in May 2013. “A decade ago I could not imagine that I would find someone I could be so compatible with that I would want to spend the rest of my life with that person. So, this is a very joyous day for both of us.”

The couple had to endure a year-long separation when Alfonso returned to Panama while immigration issues were being sorted out, although he was granted U.S. residency, also known as a green card.

Kolbe also battled his friend and fellow Republican, U.S. Sen. John McCain (R-Ariz.), who opposed the repeal of the Clinton-era “Don’t Ask, Don’t Tell” policy, which barred military service by gay and lesbian Americans. He repeatedly co-sponsored a bill to scrap the military’s “Don’t Ask, Don’t Tell” policy at odds with others in his party over the issue.

After he left Congress he continued to be active in Republican politics in 2012 endorsing former Massachusetts Gov. Mitt Romney in his race for the presidency against then incumbent President Barack Obama.

In an interview with the Blade at the time, Kolbe responded to the anti-gay language in the draft version of the Republican Party platform. In addition to endorsing a Federal Marriage Amendment, the platform criticized the Obama administration for dropping defense of DOMA in court and judges for “re-defining marriage” in favor of gay couples.

Kolbe predicted the 2012 Republican platform will be the last one to include such language.

“That’ll be the last time that will be in the Republican Party platform,” Kolbe said. “It won’t be there four years from now. It’s got its last gasp. I don’t believe it’ll be there four years from now; I wish it weren’t there now, but I don’t believe it will be four years from now.”

The issue over the rights of same-sex couples to marry ended with Obergefell v. Hodges, 576 U.S. 644, the landmark civil rights case in which the U.S. Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment to the Constitution.

Just this week prior to his death, the Respect for Marriage Act passed the Senate by a vote of 61-36.

That legislation requires the federal government to recognize a marriage between two individuals if the marriage was valid in the state where it was performed and guarantee that valid marriages between two individuals are given full faith and credit, regardless of the couple’s sex, race, ethnicity or national origin. It is expected to pass the House again this week after which it heads to President Joe Biden for his signature.

Early in his career, Kolbe in 1976 ran for a seat in the Arizona Senate in the Tucson-Pima County district and defeated a one-term Democrat. In mid-1982, he resigned from the state Senate to run in the newly created Arizona’s 5th U.S. congressional district, but lost to Democrat Jim McNulty.

He ran again in 1984 winning the seat that he went to hold for over two decades.

According to his biography Kolbe was born in Evanston, Ill., a suburb of Chicago, but when he was five, his family moved to a ranch in rural Santa Cruz County, Arizona. It was there he attended Patagonia Elementary School and Patagonia Union High School, but graduated from the U.S. Capitol Page School in 1960 after serving for three years as a Senate Page for Arizona Republican U.S. Sen. Barry Goldwater.

He matriculated first at Northwestern University and then at Stanford University earning a master’s degree in economics. During the Vietnam era from 1965 to 1969, he served in the U.S. Navy, including a tour in Vietnam as a member of the Navy’s “Swift Boat” force. 

After military service Kolbe served as a special assistant to Republican Illinois Gov. Richard B. Ogilvie. He then moved back to Arizona settling in Tucson where he worked in business.

Accolades for the former congressman included many from Arizona political and business fields of endeavor.

“Pima County and southern Arizona could always count on Jim Kolbe,” Pima County Board of Supervisors Chair Sharon Bronson said in a statement.

Matt Gress, who was recently elected to the Arizona Legislature, called Kolbe a political pioneer.

“Today, because of Jim Kolbe, being a member of the LGBT community and serving in elected office has become irrelevant,” he said in a statement.

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District of Columbia

HHS secretary discusses federal overdose prevention efforts at Whitman-Walker

Officials held round table with clients, ‘community stakeholders’

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U.S. Health and Human Services Secretary Xavier Becerra (Public domain photo)

U.S. Department of Health and Human Services Secretary Xavier Becerra and four other high level federal health officials held a roundtable community meeting followed by a press conference at D.C.’s Whitman-Walker Health headquarters on Friday to discuss what they said were “groundbreaking” efforts to address and end the nation’s epidemic of deaths from the overdose of opioid drugs.

A statement released by HHS says Becerra and the other officials, including Dr. Rahul Gupta, director of the White House Office of National Drug Control Policy, reached out to Whitman-Walker, which, among other things, operates one of the D.C. metro area’s preeminent substance abuse treatment programs, to commemorate the one-year anniversary HHS’s Overdoes Prevention Strategy program.

“Now, one year after the release of this strategy, our nation is in a much stronger position to treat addiction and save lives,” Becerra said. “We didn’t get here by accident. Thanks to decades of work by advocates, coupled with an unparalleled people-first strategy and unprecedented investment by the Biden-Harris administration, we have made a great deal of progress,” he said.

The officials, including Gupta, pointed out that the Overdose Prevention Strategy over the past year and an updated effort launched this month have focused on greatly expanding availability of the drug overdose antidote medication naloxone.

“Deaths caused by opioids like illicit fentanyl are preventable with naloxone, and today’s announcement means more life-saving naloxone will be in communities across the country,” Gupta said. “The latest data continue to show a hopeful trend of a decreases in overdose deaths, so we must remain focused on fully implementing President Biden’s National Drug Control Strategy that will save tens of thousands of lives by expanding care for substance use disorder, making naloxone more accessible, and dismantling drug trafficking operations,” he said. 

In addition to Gupta from the White House, Becerra was joined at the community meeting and press conference by Dr. Miriam Delphin-Rittmon, assistant secretary for the Substance Abuse and Mental Health Services Administration (SAMHSA), which is an arm of HHS; Dr. Debra Houry, acting principal deputy director of the U.S. Centers for Disease Control and Prevention and Dr. Robert Califf, commissioner of the U.S. Food and Drug Administration. 

Also participating in the roundtable session and press conference was U.S. Sen. Tammy Baldwin (D-Wis.), the nation’s first out lesbian member of the Senate. 

Becerra said he invited Baldwin to participant in the day’s events, among other things, because of her record of advocacy and support for funding of federal substance abuse and overdose prevention programs. 

“One area I’ve championed in Congress is increasing access to overdose reversal medication like naloxone,” Baldwin said. “We know that when you increase access to this safe and effective treatment that you save lives,” she said. “And I’m thrilled to see the Biden administration and especially the Food and Drug Administration taking steps to increase access to naloxone.”

Califf told the gathering one of the FDA’s recently launched efforts is to work with drug manufacturers to arrange for naloxone to become an over-the-counter drug that would further expand its availability. 

From left, HHS Secretary Xavier Becerra, Dr. Rahul Gupta, Sen. Tammy Baldwin (D-Wis.), Dr. Robert Calif (at podium) and Dr. Miriam Delphin-Rittmon at Whitman-Walker Health in D.C. on Dec. 2, 2022. (Washington Blade photo by Lou Chibbaro, Jr.)

The roundtable discussion session, which included close to 50 participants, including Becerra and the other federal officials, was closed to the press, according to an HHS spokesperson, because among those participating were Whitman-Walker clients and others who receive services and support for what the officials called substance use disorder.

During the press conference that followed, Becerra spoke of how some of those participating in the roundtable discussion were part of Whitman-Walker’s success stories in helping people overcome substance use problems 

“We’re here because a year ago we decided to go in a different direction at the federal level,” he said at the press conference. “We decided that we’re not moving fast enough, we’re not moving close enough to where we need to be to try to help communities and those folks at Whitman-Walker who are trying to not just get folks into treatment but to save lives,” Becerra said. 

“And that was the great thing about the round table that we just had,” he said. “We heard about how people thrive,” he said, adding, “And one of the clients, Deborah, spoke about how she’s on the verge of getting her degree from college … That’s what we want to see … I want to thank the folks at Whitman-Walker for letting us come today to see how people can thrive and be part of that success.”

Whitman-Walker Health CEO Naseema Shafi told the Washington Blade after the press conference that Whitman-Walker has a long history of partnering with federal government agencies in addressing health issues, including Whitman-Walker’s role as a healthcare facility welcoming the LGBTQ community. 

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