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Will Obama appeal DOMA court rulings?

Justice Dept. has until Oct. 12 to decide

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President Obama’s commitment to repealing the Defense of Marriage Act is likely to come under enhanced scrutiny next week when the U.S. Justice Department announces its decision on whether or not it will appeal federal court rulings against the statute.

Legal experts across the board are expecting the administration to appeal the decisions as many LGBT advocates grumble that the defense of DOMA in court undermines Obama’s campaign pledge to advocate for same-sex couples.

Richard Socarides, a gay New York attorney and former adviser to President Clinton, said he expects the Justice Department to appeal the cases because he believes the administration hasn’t shown any signs of changing its position after defending DOMA at the district court level.

“I think that they’re going to continue to battle the gay rights movement in the courts,” Socarides said. “I think it continues to be one of the most unfortunate decisions of the president’s entire first two years in office and really something that is perhaps the most troubling part of these first two years of his presidency.”

Socarides said he doesn’t think the administration is compelled to appeal the decisions to the U.S. First Circuit Court of Appeals even as he acknowledged that debate has taken place over whether the president can decide against upholding a federal statute.

“I think that it’s clear now that the president has the option of declining to defend laws that he believes are not constitutional,” Socarides said. “This law has now been declared unconstitutional, so he could agree with the federal district court … and choose not to defend it.”

Evan Wolfson, executive director of Freedom to Marry, also predicted the administration will appeal the decisions made in the DOMA cases because he believes Justice Department officials think they’re required to do so.

Still, Wolfson said the extent to which the Justice Department defends DOMA at the U.S. First Circuit Court of Appeals would be an appropriate gauge to determine the Obama administration’s commitment to supporting LGBT people.

“I think the Justice Department can argue they have to appeal, but they should not be trying to win at all costs, and they should urge the court to adopt a presumption of unconstitutionality for the cruel exclusion from marriage that they themselves admit is discrimination,” Wolfson said.

On July 8, U.S. District Court Judge Joseph Tauro ruled in two separate cases — Gill v. U.S. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health & Human Services — that the part of DOMA prohibiting federal recognition of same-sex marriage is unconstitutional.

The Obama administration defended DOMA when both those cases came before the U.S. District Court of Massachusetts.

In response to a query on the whether the administration would appeal the rulings, the White House deferred comment to the Justice Department, which didn’t respond.

The deadline for making a decision in the Commonwealth case — filed by Massachusetts Attorney General Martha Coakley — is Oct. 12.

The Justice Department doesn’t have to appeal the decision in the Gill case, filed by Gay & Lesbian Advocates & Defenders, until Oct. 18 because the court didn’t enter judgment in the case until later.

Still, Lee Swislow, GLAD’s executive director, said her organization is anticipating the Obama administration will announce its decision for both cases at the same time.

“From an efficiency point of view, the cases are clearly connected and it would make sense for the government to appeal both of them on the same day,” she said.

Announcing a decision to appeal both cases at the same time would also limit the amount of negative press the White House would receive to one day as opposed to stringing out criticism over a series of days.

Swislow said she’s expecting the administration to appeal both lawsuits and said doing so means the Justice Department is doing its duty of defending federal laws.

“I don’t think you can read much into it in terms of the administration’s support in general of LGBT rights,” she said. “From a legal point of view, they have to defend the law or write an official letter to Congress on why they’re not appealing.”

After the Justice Department appeals the decisions to the First Circuit, Swislow said she expects a series of briefs will be filed to the appellate court on both sides, including friend-of-the-court briefs from supporters and opponents of DOMA.

Once oral arguments take place, those involved with the litigation will await the decision of the court.

“We could have a decision anywhere from a year from now to a year-and-a-half from now if they follow their average, and that’s all we have to go on is how long it usually takes at the First Circuit court,” Swislow said.

Once the First Circuit has made its rulings, Swislow said deciding whether or not to appeal the case further to the U.S. Supreme Court would be different for the Obama administration.

Swislow said Justice Department officials could say they’ve “done their job” and not challenge the ruling further — even as she acknowledged her organization would love a win for the cases at the Supreme Court.

“If we win at the First Circuit Court of Appeals, the question of whether to take it to the Supreme Court or not, I think, is a different calculation,” she said.

Even as many LGBT rights supporters bemoan the administration’s defense of DOMA, others say continued support for the law in court could have some advantages.

Defenders of the Obama administration have said defending anti-gay laws such as DOMA sets a precedent that would prevent future administrations from allowing litigation against pro-laws to go unchallenged.

In an article about the future of litigation against “Don’t Ask, Don’t Tell,” Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, was quoted last week in Politico as suggesting the administration’s defense of the law in court would allow the federal hate crimes law to stay on the books.

“What happens when there’s a legal challenge to, say, hate crimes [law] in a next administration, a possible Republican administration?” Sarvis reportedly said. “Will they defend the federal statute?”

Swislow expressed similar beliefs that defending DOMA would set a precedent for subsequent administrations that could be hostile to LGBT rights.

“We expect them to defend this case and we’re not mad at them for defending this case, and, yes, the process of the Justice Department — that mandate, really — to defend the law can help us,” she said.

But Socarides scoffed at the notion that defending laws like DOMA would keep pro-gay laws safe under future administrations.

“I know that a lot of people make it in defense of the administration, but to me, it’s an entirely ludicrous argument,” Socarides said. “That argument turns all logic on its head. We’re not going to defend civil rights because some day the Republicans may choose not to defend civil rights.”

In another respect, appealing the lawsuits to the First Circuit could be beneficial to same-sex couples throughout New England because the higher court has jurisdiction over more states.

A favorable ruling at the First Circuit could invalidate part of DOMA for not just married same-sex couples in Massachusetts, but also couples living in Connecticut, Vermont and New Hampshire.

Swislow said an appeal of the DOMA cases is “really in our interest” because a victory only at the district court level would “only affect our particular plaintiffs” and not anyone else.

“It’s much better, in fact, to have the case appealed so that the victory in the appellate court … affects the First Circuit [and] a victory in the Supreme Court affects the whole country,” she said.

Doug NeJaime, a gay law professor at Loyola Law School, also said an appeal in the GLAD case could be beneficial to married same-sex couples across the nation because of the strong case made by plaintiffs.

“This is a very carefully and limited challenge seeking some federal recognition of married same-sex couples, but only affecting states where couples are allowed to actually enter into marriages that are recognized,” NeJaime said. “So, I think this would actually be a good issue to have work its way up the appellate chain.”

Still, Socarides said the Obama administration shouldn’t be considered a friend to the LGBT community for appealing the lawsuits because the president hasn’t said he’s appealing them for the purpose of having a stronger ruling.

“If the United States came back and said we believe this is unconstitutional, but we’re going to appeal it because we want a ruling from a court of appeals declaring it unconstitutional, that would be terrific, but they don’t say that, do they?” he said.

(Obama photo is a Blade file photo by Michael Key)

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Virginia

Va. Senate committee kills six anti-transgender bills

Democrats control chamber by 22-18 margin

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(Washington Blade photo by Michael Key)

The Virginia Senate Education Committee on Thursday killed six anti-transgender bills.

The committee rejected state Sen. Mark Peake (R-Lynchburg)’s Senate Bill 960, state Sen. Amanda Chase (R-Colonial Heights)’s Senate Bill 791 and state Sen. Bryce Reeves (R-Spotsylvania County)’s Senate Bill 1203. All three measures would have banned transition-related health care for minors in Virginia.

The committee also killed state Sen. John Cosgrove (R-Chesapeake)’s Senate Bill 911, Reeves’ Senate Bill 1186 and Peake’s Senate Bill 962. The measures would have banned transgender athletes from school teams corresponding with their gender identity.

Equality Virginia in a tweet said committee members received more than 3,000 emails “in opposition” to the bills. The statewide advocacy group further noted 10 out of 12 anti-trans bills introduced during this year’s legislative session have been defeated.

“Thank you to everyone who has spoken up against these bills,” said Equality Virginia. “Virginia is remaining a better, more inclusive state because of your efforts.”

“The fight isn’t over,” added the advocacy group. “But we know Virginians will show up for trans youth, day after day.”

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Virginia

Va. Senate subcommittee essentially kills three anti-transgender bills

Measures would ban transition-related health care for minors

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(Washington Blade photo by Michael Key)

A Virginia Senate subcommittee on Tuesday essentially killed three bills that would have banned transition-related health care for minors in the state.

Equality Virginia in a tweet noted the Senate Health Subcommittee “recommended killing” state Sen. Mark Peake (R-Lynchburg)’s Senate Bill 960, state Sen. Amanda Chase (R-Colonial Heights)’s Senate Bill 791 and state Sen. Bryce Reeves (R-Spotsylvania County)’s Senate Bill 1203. 

“We expect these bills to be officially dead after the full committee meets on Thursday,” said Equality Virginia.

Democrats have a 22-18 majority in the state Senate, and they have said they will block any anti-LGBTQ bill that reaches their chamber. State Del. Danica Roem (D-Manassas), who is the first openly transgender woman seated in a state legislature in the U.S., on Tuesday reiterated this point.

“With the defeat of these bills in the Senate, our (Virginia Senate Democrats) made it clear that *any* bills in the House targeting trans kids during the final week before crossover will not become law if they make it to the Senate,” she tweeted. “Let’s focus on feeding kids, not singling them out.”

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The White House

Doug Emhoff visits monument to gay victims of the Nazis in Berlin

Second gentleman marked International Holocaust Remembrance Day at Auschwitz

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The Memorial to Homosexuals persecuted under Nazism in Berlin on July 23, 2022. Second gentleman Doug Emhoff visited the memorial on Jan. 31, 2023. (Washington Blade photo by Michael K. Lavers)

Second gentleman Doug Emhoff on Tuesday visited a monument to gay victims of the Nazis in Berlin.

A readout from Emhoff’s office notes he visited the Memorial to the Persecuted Homosexuals under National Socialism with Philipp Braun of the Lesbian and Gay Federation of Germany, a German LGBTQ and intersex rights group. Christopher Schreiber and Alexander Scheld of the Berlin-Brandenburg Lesbian and Gay Federation were also with Emhoff.

“The Memorial to the Persecuted Homosexuals under Nazi Socialism is intended to honor the homosexual victims of National Socialism and at the same time ‘set a constant sign against intolerance, hostility and exclusion towards gays and lesbians,'” notes the readout.

Emhoff on Tuesday visited other memorials that honor the Sinti and Roma and people with disabilities who the Nazis killed. The second gentleman also visited Berlin’s Holocaust memorial before he met with five people who survived it.

The second gentleman earlier in the day participated in a roundtable with Jewish, Muslim and Christian leaders and met with Ukrainian refugees at Berlin’s New Synagogue. Emhoff on Monday participated in a meeting at the city’s Topography of Terror Museum that focused on antisemitism.

International Holocaust Memorial Day, which commemorates the liberation of the Auschwitz-Birkenau concentration camp in Poland in 1945, took place on Jan. 27. 

Emhoff, who is Jewish, traveled to the Auschwitz-Birkenau State Memorial and Museum and participated in ceremonies that commemorated the camp’s liberation. He later attended a Shabbat dinner with members of the Jewish community in Krakow, visited Oscar Schindler’s factory and met with Ukrainian refugees at a U.N. Refugee Agency community center before he traveled to Germany.

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