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JUDGE OVERTURNS PROP 8 IN HISTORIC RULING

Activists hail decision as major victory for marriage equality

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A crowd at Bravo Bravo Restaurant & Nightclub in D.C. celebrates Wednesday's federal court decision finding Proposition 8, which banned same-sex marriage in California, to be unconstitutional. The decision is expected to be appealed. (Washington Blade photo by Michael Key)

In an historic development, a federal judge in California ruled Wednesday that the Golden State’s ban on same-sex marriage is unconstitutional.

The ruling by U.S. District Court Judge Vaughn Walker in San Francisco said an amendment to the state’s constitution banning same-sex marriage, which voters approved in a 2008 ballot measure known as Proposition 8, violates the U.S. Constitution’s equal protection and due process clauses.

“Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement,” Walker wrote in his ruling.

The order also prohibits “the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

But Walker stayed his own order for an indeterminate length of time at the request of Prop 8 supporters in a separate ruling, pending an expected appeal of the case.

Voter approval of Prop 8 put an end to same-sex marriages that began in California in early 2008, when the state’s highest court ruled that gays and lesbians could not be denied the right to marry under the state constitution.

Same-sex marriage opponents said Wednesday they would take immediate steps to appeal Vaughn’s decision to the Ninth Circuit U.S. Court of Appeals, which could take a year or more to issue a ruling.

Supporters and opponents of same-sex marriage have each vowed to take the case to the U.S. Supreme Court if they lose at the appeals court level, a development that legal observers say could lead to a landmark Supreme Court ruling on same-sex marriage.

Vaughn’s decision Wednesday followed a controversial 12-day trial in January in which he presided over arguments by supporters and opponents of same-sex marriage that drew international media coverage. He ordered a four-month break in the trial to go over a mountain of evidence before resuming the proceedings in June to hear closing arguments.

His 136-page decision released late Wednesday strongly rejected arguments by attorneys supporting Proposition 8 that same-sex marriage harms traditional marriage, procreation and child-rearing, saying those arguments reflect a “moral view” that does not justify a “state interest” in banning same-sex marriage.

“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians,” he wrote. “The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.”
He added that “because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

The ruling drew quick praise from many advocates of same-sex marriage, including Evan Wolfson of Freedom to Marry.

“Judge Walker’s decision will be appealed and litigation will continue, but what we witnessed in the clear light of his courtroom cannot be erased,” he said. “The witnesses, evidence and arguments all demonstrated what we’ve long known: exclusion from marriage harms committed same-sex couples and their families, while helping no one and the unjustified and unfair denial of marriage to same-sex couples violates the United States Constitution.

“The judge’s ruling reflects the growing consensus in courtrooms and legislatures across the country, and around the world, that there is simply no good reason to exclude same-sex couples from marriage.”

Several elected officials, including New York Gov. David Paterson, also applauded the ruling.
“I know that there is a long road ahead in the legal proceedings, but whatever the outcome I believe that the bedrock American principle of equal protection under the law must mean equal rights for gays and lesbians, and that such equal rights must include the fundamental right to marry,” he said. “Today’s decision is one important step in a long struggle, and that struggle must continue until equality is achieved.”

But the National Organization for Marriage, the nation’s leading group opposing same-sex marriage, called the decision a threat to “traditional” marriage in other states.

“With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman,” said Brian Brown, the group’s president. “This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman.”

The case, Perry v. Schwarzenegger, was named after Kris Perry, who, along with her partner of 10 years, Sandy Stier, was among two same-sex couples that filed the lawsuit to challenge Prop 8 on federal constitutional grounds.

Paul Katami and Jeff Zarrillo, the other two plaintiffs, have been together for nine years. Neither of the couples married in California during the short window in which same-sex marriage was legal but said they joined the suit to enable them and other same-sex couples to fulfill their desire to marry from that time going forward.

In a development that angered supporters of Proposition 8, California Attorney General Jerry Brown, a Democrat and long-time supporter of LGBT rights, refused to defend the ballot measure on behalf of the state. Republican Gov. Arnold Schwarzenegger chose not to overrule Brown, placing himself in the odd position of being named the lead defendant in the case but taking no action to defend a state constitutional provision.

The state’s decision not to defend the law forced leaders of the campaign to pass Prop 8 to assume the role of defending it in court, with the pro-Prop 8 group Protect Marriage taking the lead.

The American Foundation for Equal Rights, a group created by California gay activist Chad Griffin to challenge Prop 8, initiated the lawsuit at a time when some legal experts and gay legal groups opposed such a challenge.

Lambda Legal Defense & Education Fund was among the groups that considered challenging Prop 8 on federal constitutional grounds to be too risky because the case would likely reach the U.S. Supreme Court, which was expected to rule against same-sex marriage rights.

Support for the lawsuit initially was less than overwhelming within LGBT legal and activist circles. But the initial reservations — at least in public forums — appeared to vanish when American Foundation for Equal Rights leaders managed to pull off what some considered a stunning coup.

The group lined up conservative Republican attorney and acclaimed constitutional expert Theodore “Ted” Olson, a former U.S. Solicitor General under President George W. Bush; and esteemed litigator, law school professor and U.S. Justice Department attorney during the Clinton administration, David Boies, as the lead attorneys for the two couples in the case.

Olson, who had not spoken out on LGBT issues in the past, emerged as a champion for LGBT equality, saying the right to marry for same-sex couples was protected by the U.S. Constitution and should be a fundamental principle in U.S. law.

The two attorneys’ arguments and actions during the Prop 8 trial appeared to dominate the proceedings and prompted many legal observers to conclude that their side came across far stronger than the legal team defending Prop 8.

Olson and Boies argued during the trial, among other things, that Prop 8 violates the U.S. Constitution’s Equal Protection Clause and the Fourteenth Amendment as well as the Constitution’s Due Process Clause by “impinging” on fundamental liberties.

The two also argued that Prop 8 singles out gays and lesbians for “disfavored legal status” and thus creates “second-class citizens.” They also told the court the same-sex marriage ban discriminates on the basis of gender and sexual orientation.

Attorneys Andrew Pugno and Charles Cooper with Protect Marriage presented just two witnesses during the trial. The credentials of both witnesses as experts were challenged by the plaintiffs, and both supporters and opponents of Prop 8 thought the attorneys did a lackluster job of defending the marriage ban statute.

Vaughn, 65, who was first nominated for his federal judgeship post by President Ronald Reagan, became the focus of unexpected publicity when media reports disclosed in February that he’s gay.

Some gay rights opponents demanded he be removed from the case, saying he could not render an impartial decision. Other same-sex marriage opponents said Vaughn’s sexual orientation should not matter but accused him of being biased against the defendants in his procedural rulings during the trial.

LGBT legal groups and public opinion leaders, including newspaper editorials, disputed claims that Vaughn was biased and dismissed calls for him to step down from the case. Some noted that the judge had been criticized during his earlier years on the bench for handing down conservative, libertarian oriented decisions that in a few cases went against gay rights.

Gay rights attorneys familiar with the case said Vaughn’s strongly worded ruling overturning Proposition 8 on federal constitutional grounds lays the groundwork for striking down laws banning same-sex marriage in all states that have them.

But the attorneys noted that the other states won’t be directly impacted unless or until the Ninth Circuit Court of Appeals and the U.S. Supreme Court upholds Vaughn’s ruling. With the Ninth Circuit long considered to have liberal and progressive leanings, LGBT activists and gay rights attorneys believe they have the best shot at winning there.

According to Jenny Pizer, an attorney and same-sex marriage law specialist with Lambda Legal, if the Supreme Court does not reverse a favorable ruling by the Ninth Circuit, either by refusing to take the case or by upholding the appeals court’s decision, laws banning same-sex marriage in the nine states under the Ninth Circuit’s jurisdiction would likely fall.

In addition to California, the states in the Ninth Circuit include Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Should the Supreme Court uphold Vaughn’s decision, laws banning same-sex marriage in virtually all states – as well as the federal Defense of Marriage Act – could also be expected to fall.

“The federal Constitution’s guarantee of equal protection and due process, including the fundamental right to marry, need to mean the same thing in every state in the union,” Pizer said.

“The ruling issued today concludes, and we think of course rightly, that lesbian and gay Americans have the same fundamental right to marry that heterosexual Americans have. And they should be able exercise that right to marry.”

Pizer noted that Vaughn cited repeatedly in his ruling two key Supreme Court rulings considered landmark breakthroughs for LGBT rights—Lawrence v. Texas, which overturned state sodomy laws for consenting adults in private; and Roemer v. Evans, which overturned a Colorado ballot measure that banned local jurisdictions within the state from adopting laws prohibiting discrimination based on sexual orientation.

“The Roemer decision affirmed the liberty rights of gay people, which is at the center of the freedom to marry the person that you choose,” Pizer said.

She said the Lawrence decision, written by Supreme Court Justice Anthony Kennedy, established that “traditions and moral beliefs alone do not justify maintaining a discriminatory system.”

Speaker of the House Nancy Pelosi (D-Calif.), the American Civil Liberties Union, People for the American Way, and Judy Shepard, mother of gay student Matthew Shepard, whose murder in a 1998 anti-gay hate crime drew attention to LGBT rights, were among those praising Judge Walker’s decision.

The White House released a brief statement on the Prop 8 decision through spokesperson Shin Inouye.

“The president has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans,” the statement says.

Rep. Tammy Baldwin (D-Wisc.), who is lesbian, appeared to sum up the views of LGBT civil rights groups and supportive members of Congress on the question of whether the courts should overturn a law passed by the voters.

“We live in a democracy wherein majority rule is checked and balanced by the guarantee of inalienable minority rights,” Baldwin said in a statement.

“This case, as it wends its way up to the U.S. Supreme Court, presents jurists with fundamental questions about minority rights and majority rule. I believe Judge Walker got it right, declaring that denial of marriage rights and protections to gay and lesbian citizens violates the Constitution even if it reflects the will of the majority of Californians,” she said.

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National

Trans experiences with the internet range from ‘harrowing’ to ‘powerful’

New survey provides insights into the stakes of web use for LGBTQ adults

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(Image courtesy of LGBT Tech)

Alex, 29, would not have met their friends without the internet. While living in a small city surrounded by farmland, finding community was not always easy.

Alex tried out one of those apps for adults seeking to make friends. It turned out to be a remarkable success. “I’ve made my friend group as a direct result of using the internet,” they said, explaining that even though all the friends are trans, due to their diverse interests, “we would have been hard-pressed to have ever really run into each other by happenstance.”

Making friends online is also safer for Alex. Before they pursued HRT and surgery and looked more “visibly queer,” they were in scary situations. “I’ve had pickup trucks chase me while driving, people call out slurs while driving by me, and I’ve been shot at,” they said. 

Having the internet available for appointments, work, and social activities is fundamental to their life.

But the web was not always such a friendly place for Alex. “There’s so much hate and falsehoods out there about trans people,” they said. “It’s why it takes so long for some of us to learn about who we are.”

This dissonance is widespread within the LGBTQ community. A recent report—”ctrl+alt+lgbt: Digital Access, Usage, and Experiences of the LGBTQ+ Community”—by LGBT Tech and Data for Progress provides insight into that phenomenon. 

Shae Gardner, director of policy at LGBT Tech, explained that most of the research about the LGBTQ community’s internet use historically has focused on youth. The project aimed to fill the gap. From surveys with 1,300 people across the country, the report found that while the internet is a foundational space for LGBTQ community building and self-expression, it also comes with a high risk for bullying and harassment.  

These findings intensify when looking specifically at the data for underrepresented groups within the LGBTQ population like the transgender community, who are by far the group that faces the most harassment online, per the Anti-Defamation League. Gardner explained that the survey was over-sampled for transgender individuals intentionally. “We really wanted to understand that specific experience,” Gardner said.

The Blade interviewed five trans people about their experiences to gain insight into how different community members felt while navigating the web and specifically identified sources who do not have public platforms and therefore do not face heightened public scrutiny. Due to concern for backlash, all sources for this story spoke on condition of anonymity with gender-ambiguous names and they/them pronouns.

Four out of five of the people interviewed emphasized that the internet is a vital resource for accessing healthcare. 

Riley, 24, explained, “I have such immense dread about transitioning because I don’t want to have to interact with doctors around my identity. I feel like I don’t have access to providers who are able to understand me.”

The internet, for many, provides a safe location to access health information and care without the judgment of doctors. Kai, 23, and Cameron, 27, both shared that the internet was an important place for them to learn specifics around trans healthcare and seek out trans-friendly providers. Alex agreed and added that they have made it so all of their doctors’ appointments through tele-health.

These experiences are consistent with the larger trans community. LGBT Tech’s survey found that 70% of transgender adults use the internet to find LGBTQ-friendly healthcare. By comparison, only 41% of cisgender LGBTQ adults use the internet to find the same friendly care.

All the sources interviewed said they sought LGBTQ community online with varying degrees of success. 

Jordan, 24, said that not only is social media a good way to stay connected with people they know, but it also helps them find a broader community. “It’s nice to follow other trans and queer people whose experiences can inspire me or make me feel seen.”

Cameron emphasized that the internet provides connections to activities and communities around town. “Social media has facilitated my in-person queer and trans community,” they explained. “I learn a lot about what queer events are happening around town via social media. I have a wonderful community playing queer sports that I wouldn’t have found without the internet.”

Kai shared that it hasn’t been a successful pursuit for them: “I wish it did more than it does.” 

Per Trans Tech’s survey, transgender adults “often” use social media to connect with existing LGBTQ friends and family 41% of the time (as opposed to “sometimes” “rarely” or “never”). This is 21% more than the LGBTQ community at large. The survey also reveals that transgender adults are 20% more likely to “often” use social media to connect with new LGBTQ community than the LGBTQ community at large.

Everyone but Cameron has experienced some form of direct bullying or harassment for being transgender, either online or in person. The survey found that 83% of transgender adults have faced bullying online. By comparison, 59% of the cisgender LGBTQ community faced bullying online. 

“Technology is only as good as its application. And this is the other side of the dual-edged sword,” said Gardner. 

Gardner explained that the online and in-person harassment was mirrored. “The experiences of anti-LGBTQ bullying were very high, both for LGBTQ+ individuals and especially for trans individuals, but those numbers were nearly equitable to the experiences that that they have in the real world with anti-LGBTQ+ bullying,” she said. The survey found that 82% of transgender adults faced bullying in person.

The survey found despite the comparable levels of harassment and high levels of misinformation (93% of transgender adults saw anti-LGBTQ misinformation online), respondents overwhelmingly felt safe online—67% of trans adults and 76% of cisgender LGBTQ adults. 

When she compared this phenomenon to her life, Gardner wasn’t surprised. “The harassment that I have faced online has certainly felt less immediately threatening than what I’ve faced in person. The mental toll it takes is significant, but I would argue individuals probably have an easier time getting away from it.”

That doesn’t stop Gardner from noting, “We need to be fighting [harassment] in both places.” 

She explained that, “when we are staring down the barrel of record-setting anti-LGBTQ+ legislation yet again, it is so integral to keep fighting for digital spaces to be as safe as possible.”

Regardless of its safety, it is a space that is a constant for many. “I use the internet constantly,” said Alex. “I use the internet a lot at work since I have a desk job,” said Jordan.

When reflecting on the internet, Riley summed up the tensions they experience. “It can be harrowing often but simultaneously it’s where I feel a sense of community and access.”

(This story is part of the Digital Equity Local Voices Fellowship lab through News is Out. The lab initiative is made possible with support from Comcast NBCUniversal.)

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Pennsylvania

Pa. House passes bill to repeal state’s same-sex marriage ban

Measure now goes to Republican-controlled state Senate

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Pennsylvania Capitol Building (Washington Blade file photo by Michael Key)

The Democratic-controlled Pennsylvania House of Representatives on July 2 passed a bill that would repeal the state’s same-sex marriage ban.

The marriage bill passed by a 133-68 vote margin, with all but one Democrat voting for it. Thirty-two Republicans backed the measure.

The bill’s next hurdle is to pass in the Republican-controlled Pennsylvania Senate.

State Rep. Malcolm Kenyatta (D-Philadelphia), a gay man who is running for state auditor, noted to the Pittsburgh Tribune-Review the bill would eliminate a clause in Pennsylvania’s marriage law that defines marriage as “between one man and one woman.” The measure would also change the legal definition of marriage in the state to “a civil contract between two individuals.”

Kenyatta did not return the Washington Blade’s requests for comment.

The U.S. Supreme Court in 2015 in Obergefell v. Hodges extended marriage rights to same-sex couples across the country. 

Justice Clarence Thomas in the 2022 decision that struck down Roe v. Wade said the Supreme Court should reconsider the Obergefell decision and the Lawrence v. Texas ruling that said laws that criminalize consensual same-sex sexual relations are unconstitutional. President Joe Biden at the end of that year signed the Respect for Marriage Act, which requires the federal government and all U.S. states and territories to recognize same-sex and interracial marriages.

Republican Virginia Gov. Glenn Youngkin earlier this year signed a bill that codified marriage rights for same-sex couples in state law. Pennsylvania lawmakers say the marriage codification bill is necessary in case the Supreme Court overturns marriage rights for same-sex couples in their state and across the country.

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Pennsylvania

Western Pa. transgender girl killed, dismembered

Pauly Likens, 14, brutally murdered last month

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(Photo courtesy of the LGBTQIA+ Alliance Shenango Valley)

Editor’s note: The Philadelphia Gay News originally published this story.

BY TIM CWIEK | Prosecutors are pledging justice for Pauly Likens, a 14-year-old transgender girl from Sharon, Pa., who was brutally killed last month. Her remains were scattered in and around a park lake in western Pennsylvania.

“The bottom line is that we have a 14-year-old, brutally murdered and dismembered,” said Mercer County District Attorney Peter C. Acker in an email. “Pauly Likens deserves justice, her family deserves justice, and we seek to deliver that justice.”

On June 23, DaShawn Watkins allegedly met Likens in the vicinity of Budd Street Public Park and Canoe Launch in Sharon, Pa., and killed her. Watkins subsequently dismembered Likens’s corpse with a saw and scattered her remains in and around Shenango River Lake in Clark Borough.

On July 2, Watkins was arrested and charged with first-degree murder, aggravated assault, abuse of a corpse and tampering with evidence. He’s being held without bail in the Mercer County jail.

The coroner’s office said the cause of death was sharp force trauma to the head and ruled the manner of death as homicide.

Cell phone records, social media and surveillance video link Watkins to the crime. Additionally, traces of Likens’s blood were found in and around Watkins’s apartment in Sharon, Pa., authorities say.

A candlelight vigil is being held Saturday, July 13, in remembrance of Likens. It’s being hosted by LGBTQIA+ Alliance Shenango Valley. The vigil begins at 7 p.m. at 87 Stambaugh Ave. in Sharon, Pa.

Pamela Ladner, president of the Alliance, mourned Likens’s death. 

“Pauly’s aunt described her as a sweet soul, inside and out,” Ladner said in an email. “She was a selfless child who loved nature and wanted to be a park ranger like her aunt.”

Acker, the prosecutor, said Likens’s death is one of the worst crimes he’s seen in 46 years as an attorney. But he cautioned against calling it a hate crime. “PSP [Pennsylvania State Police] does not believe it in fact is one [hate crime] because the defendant admitted to being a homosexual and the victim was reportedly a trans girl,” Acker asserted.

Acker praised the criminal justice agencies who worked on the case, including the Pennsylvania State Police, the Hermitage Police Department, the Sharon Police Department, park rangers from the Shenango Reservoir, Mercer County Coroner John Libonati, and cadaver dog search units.

“The amount of hours dedicated to the identification of the victim and the filing of charges against the defendant is a huge number,” Acker added. “We take the murder of any individual very seriously, expressly when they are young and brutally killed and dismembered.”

Acker also noted that all criminal defendants are presumed to be innocent until proven guilty in a court of law.

This is a developing story.

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