National
Lawyers cite procreation in defending Prop 8
Judges grill marriage ban supporters in televised court case
A lawyer defending California’s voter-approved ban on same-sex marriage told a three-judge federal appeals court panel Monday that the ban must be upheld to protect the institution of marriage, which he said is essential for procreation and child rearing.
In a hearing that lasted more than two hours, the panel of judges for the San Francisco-based Ninth Circuit U.S. Court of Appeals fired sharp questions at lawyers backing and opposing Proposition 8, the 2008 ballot measure that repealed the state’s same-sex marriage law.
But two of the three judges appeared to subject the lawyers defending Proposition 8 to greater scrutiny and a stronger challenge of their arguments. That led some legal observers to predict the liberal-leaning court would likely uphold a decision in August by a U.S. District Court judge declaring Prop 8 unconstitutional.
Judge Stephen Reinhardt, an appointee of President Jimmy Carter, is considered one of the court’s strongest liberals and is expected to act favorably toward the two same-sex couples challenging Prop 8 in a case known as Perry v. Schwarzenegger.
Judge Michael Hawkins, a Clinton appointee, is also considered a liberal with a likely favorable leaning toward the gay plaintiffs in the case. The third judge on the panel, N. Randy Smith, was appointed by President George W. Bush and served as chair of the Idaho Republican Party. Legal observers expect him to vote to uphold Prop 8.
Smith is a graduate of Brigham Young University and media reports identified him as a Mormon. The Mormon Church supported the passage of Prop 8 and received criticism from gay activists for encouraging church members to contribute millions of dollars into the Prop 8 election campaign.
Both the plaintiffs in the case — two same-sex couples who are challenging the gay marriage ban — and supporters of Prop 8 have said they would appeal the case to the U.S. Supreme Court if the Ninth Circuit appeals court rules against them. That would bring the question of whether gay marriage is protected by the Constitution before the high court for the first time.
“The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children,” said Charles Cooper, one of two attorneys defending Proposition 8 before the appeals court hearing Monday.
Cooper sought to use the procreation element of traditional heterosexual marriage as one of several “rational” reasons why California could ban same-sex marriage without violating the U.S. Constitution.
U.S. District Court Judge Vaughn Walker ruled in August that Proposition 8 violated the federal Constitution’s equal protection and due process clauses, in part, because there was no rational reason to deny marital rights to same-sex couples.
In his arguments, Cooper told the judges that when a relationship between a man and a woman becomes a sexual one, “society immediately has a vital interest in that.” Among other things, “society needs the creation of new life for the next generation,” he said.
Society’s vital interests are also threatened by the possibility of “unintentional and unwanted pregnancy” and single parent households in which children have “poorer outcomes,” he said.
“That sounds like a good argument for prohibiting divorce,” Judge Hawkins said, drawing laughter from the courtroom audience.
“But how does it relate to having two males or two females marry each other and raise children as they can in California and form a family unit where children have a happy, healthy home?” Hawkins asked. “I don’t understand how that argument says we ought to prohibit that.”
Cooper responded by reiterating his procreation argument. “The point and the question is whether or not the State of California has a rational reason for drawing a distinction between same-sex couples who cannot, without the intervention of a third party of the opposite sex, procreate, and opposite-sex couples who … can procreate.”
Theodore Olson, a prominent Republican attorney and constitutional law expert who surprised his GOP colleagues by joining the legal team challenging Proposition 8, strongly disputed claims that same-sex marriage would harm or inhibit procreation or the institution of marriage.
“Same-sex marriage is not going to discourage heterosexual people with heterosexual marriage,” he told the judges Monday. “It is not going to keep them from getting divorced. It is not going to have an effect at all on their choice about having children. On the other hand, the elimination of Proposition 8 cannot possibly hurt the heterosexual relationship at all,” he said.
While Olson argued the merits of why the appeals court should uphold the lower court’s finding that Proposition 8 is unconstitutional, attorney David Boies, a prominent Democrat who teamed up with Olsen in the legal challenge of Prop 8, argued that Prop 8 supporters lacked legal standing to appeal the lower court ruling.
At the time he issued his ruling in August overturning Prop 8 on constitutional grounds, Judge Walker said a decision by California Gov. Arnold Schwarzenegger and the state’s attorney general, Jerry Brown, not to appeal his ruling meant it was unlikely that another party could emerge with legal standing to challenge Walker’s decision.
Walker issued a stay on his own ruling so that the appeals court would have a chance to determine whether the same-sex marriage ban should remain in effect during the appeals process. The Ninth Circuit court extended the stay until it issues its own decision in the case.
But at Monday’s hearing, the judges appeared sympathetic to Boies’ arguments that the conservative political advocacy groups that organized the election campaign for passage of Prop 8 in 2008 did not have legal standing to appeal the lower court ruling.
Boies noted that Prop 8 was a state law in the form of a state constitutional amendment that could only be defended in court at the appeals level by the state or an agent of the state.
A second attorney defending Prop 8 before the Ninth Circuit appeals court Monday argued that a deputy clerk who processes marriage licenses in California’s conservative leaning Imperial County had joined the defense team for the proposition. The attorney, Robert Tyler, told the judges that the deputy clerk was a legitimate representative of the state and thus had legal standing to appeal the case.
But Judge Hawkins appeared to join Boies in expressing strong doubt that the deputy clerk had such standing.
Hawkins and the other appeals court judges said Monday that they would issue a decision on the legal standing matter before they consider the case on its merits. If they determine the Prop 8 supporters and their legal team don’t have standing, they will send the case back to Judge Walker, who likely would order state officials to cease enforcing Prop 8.
However, Prop 8 backers would then be expected to immediately appeal the case to the U.S. Supreme Court and ask the high court to reinstate a stay to keep Prop 8 on the books until the Supreme Court issues its own decision in the case.
“I think the arguments made even clearer to all of us that the judges are wrestling with whether this litigation even can continue with the only party seeking to appeal being those who do not appear to have legally recognizable interests in this case,” said Jennifer Pizer, an attorney with Lambda Legal.
“So I would not be at all surprised if they decide that the appeal should not proceed” based on a lack of legal standing, Pizer said.
Meanwhile, one of the leading groups supporting Prop 8 issued a statement Monday denouncing Ninth Circuit Judge Reinhardt for refusing to recuse himself from the case because his wife is a prominent attorney with the ACLU who has worked to oppose Prop 8.
“This hearing makes a mockery of the federal judiciary,” said Brian Brown, president of the National Organization for Marriage. “Citizens are entitled to a guarantee of impartiality from their judiciary,” he said. “Yet here we have the spectacle of a federal appeals court justice ruling on a case in which his wife represents a group that is a participant.”
Reinhardt issued his own statement last month saying his wife’s views on the case would not detract from his ability to be fair and impartial in his ruling on the case.
The White House
Four states to ignore new Title IX rules protecting transgender students
Biden administration last Friday released final regulations
BY ERIN REED | Last Friday, the Biden administration released its final Title IX rules, which include protections for LGBTQ students by clarifying that Title IX forbids discrimination based on sexual orientation and gender identity.
The rule change could have a significant impact as it would supersede bathroom bans and other discriminatory policies that have become increasingly common in Republican states within the U.S.
As of Thursday morning, however, officials in at least four states — Oklahoma, Louisiana, Florida, and South Carolina — have directed schools to ignore the regulations, potentially setting up a federal showdown that may ultimately end up in a protracted court battle in the lead-up to the 2024 elections.
Louisiana State Superintendent of Education Cade Brumley was the first to respond, decrying the fact that the new Title IX regulations could block teachers and other students from exercising what has been dubbed by some a “right to bully” transgender students by using their old names and pronouns intentionally.
Asserting that Title IX law does not protect trans and queer students, Brumley states that schools “should not alter policies or procedures at this time.” Critically, several courts have ruled that trans and queer students are protected by Title IX, including the 4th U.S. Circuit Court of Appeals in a recent case in West Virginia.
In South Carolina, Schools Supt. Ellen Weaver wrote in a letter that providing protections for trans and LGBTQ students under Title IX “would rescind 50 years of progress and equality of opportunity by putting girls and women at a disadvantage in the educational arena,” apparently leaving trans kids out of her definition of those who deserve progress and equality of opportunity.
She then directed schools to ignore the new directive while waiting for court challenges. While South Carolina does not have a bathroom ban or statewide “Don’t Say Gay or Trans” law, such bills continue to be proposed in the state.
Responding to the South Carolina letter, Chase Glenn of Alliance For Full Acceptance stated, “While Supt. Weaver may not personally support the rights of LGBTQ+ students, she has the responsibility as the top school leader in our state to ensure that all students have equal rights and protections, and a safe place to learn and be themselves. The flagrant disregard shown for the Title IX rule tells me that our superintendent unfortunately does not have the best interests of all students in mind.”
Florida Education Commissioner Manny Diaz also joined in instructing schools not to implement Title IX regulations. In a letter issued to area schools, Diaz stated that the new Title IX regulations were tantamount to “gaslighting the country into believing that biological sex no longer has any meaning.”
Governor Ron DeSantis approved of the letter and stated that Florida “will not comply.” Florida has notably been the site of some of the most viciously anti-queer and anti-trans legislation in recent history, including a “Don’t Say Gay or Trans” law that was used to force a trans female teacher to go by “Mr.”
State Education Supt. Ryan Walters of Oklahoma was the latest to echo similar sentiments. Walters has recently appointed the right-wing media figure Chaya Raichik of Libs of TikTok to an advisory role “to improve school safety,” and notably, Raichik has posed proudly with papers accusing her of instigating bomb threats with her incendiary posts about LGBTQ people in classrooms.
The Title IX policies have been universally applauded by large LGBTQ rights organizations in the U.S. Lambda Legal, a key figure in fighting anti-LGBTQ legislation nationwide, said that the regulations “clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity.” The Human Rights Campaign also praised the rule, stating, “rule will be life-changing for so many LGBTQ+ youth and help ensure LGBTQ+ students can receive the same educational experience as their peers: Going to dances, safely using the restroom, and writing stories that tell the truth about their own lives.”
The rule is slated to go into effect Aug. 1, pending any legal challenges.
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
Pennsylvania
Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.
State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate
Following his win in the Democratic primary contest on Wednesday, Pennsylvania state Rep. Malcolm Kenyatta, who is running for auditor general, is positioned to potentially become the first openly LGBTQ elected official serving the commonwealth.
In a statement celebrating his victory, LGBTQ+ Victory Fund President Annise Parker said, “Pennsylvanians trust Malcolm Kenyatta to be their watchdog as auditor general because that’s exactly what he’s been as a legislator.”
“LGBTQ+ Victory Fund is all in for Malcolm, because we know he has the experience to win this race and carry on his fight for students, seniors and workers as Pennsylvania’s auditor general,” she said.
Parker added, “LGBTQ+ Americans are severely underrepresented in public office and the numbers are even worse for Black LGBTQ+ representation. I look forward to doing everything I can to mobilize LGBTQ+ Pennsylvanians and our allies to get out and vote for Malcolm this November so we can make history.”
In April 2023, Kenyatta was appointed by the White House to serve as director of the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans.
He has been an active surrogate in the Biden-Harris 2024 reelection campaign.
The White House
White House debuts action plan targeting pollutants in drinking water
Same-sex couples face higher risk from environmental hazards
Headlining an Earth Day event in Northern Virginia’s Prince William Forest on Monday, President Joe Biden announced the disbursement of $7 billion in new grants for solar projects and warned of his Republican opponent’s plans to roll back the progress his administration has made toward addressing the harms of climate change.
The administration has led more than 500 programs geared toward communities most impacted by health and safety hazards like pollution and extreme weather events.
In a statement to the Washington Blade on Wednesday, Brenda Mallory, chair of the White House Council on Environmental Quality, said, “President Biden is leading the most ambitious climate, conservation, and environmental justice agenda in history — and that means working toward a future where all people can breathe clean air, drink clean water, and live in a healthy community.”
“This Earth Week, the Biden-Harris Administration announced $7 billion in solar energy projects for over 900,000 households in disadvantaged communities while creating hundreds of thousands of clean energy jobs, which are being made more accessible by the American Climate Corps,” she said. “President Biden is delivering on his promise to help protect all communities from the impacts of climate change — including the LGBTQI+ community — and that we leave no community behind as we build an equitable and inclusive clean energy economy for all.”
Recent milestones in the administration’s climate policies include the U.S. Environmental Protection Agency’s issuance on April 10 of legally enforceable standard for detecting and treating drinking water contaminated with polyfluoroalkyl substances.
“This rule sets health safeguards and will require public water systems to monitor and reduce the levels of PFAS in our nation’s drinking water, and notify the public of any exceedances of those levels,” according to a White House fact sheet. “The rule sets drinking water limits for five individual PFAS, including the most frequently found PFOA and PFOS.”
The move is expected to protect 100 million Americans from exposure to the “forever chemicals,” which have been linked to severe health problems including cancers, liver and heart damage, and developmental impacts in children.
An interactive dashboard from the United States Geological Survey shows the concentrations of polyfluoroalkyl substances in tapwater are highest in urban areas with dense populations, including cities like New York and Los Angeles.
During Biden’s tenure, the federal government has launched more than 500 programs that are geared toward investing in the communities most impacted by climate change, whether the harms may arise from chemical pollutants, extreme weather events, or other causes.
New research by the Williams Institute at the UCLA School of Law found that because LGBTQ Americans are likelier to live in coastal areas and densely populated cities, households with same-sex couples are likelier to experience the adverse effects of climate change.
The report notes that previous research, including a study that used “national Census data on same-sex households by census tract combined with data on hazardous air pollutants (HAPs) from the National Air Toxics Assessment” to model “the relationship between same-sex households and risk of cancer and respiratory illness” found “that higher prevalence of same-sex households is associated with higher risks for these diseases.”
“Climate change action plans at federal, state, and local levels, including disaster preparedness, response, and recovery plans, must be inclusive and address the specific needs and vulnerabilities facing LGBT people,” the Williams Institute wrote.
With respect to polyfluoroalkyl substances, the EPA’s adoption of new standards follows other federal actions undertaken during the Biden-Harris administration to protect firefighters and healthcare workers, test for and clean up pollution, and phase out or reduce use of the chemicals in fire suppressants, food packaging, and federal procurement.
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