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2011 to bring new marriage fights across U.S.

R.I., Md. best bets for progress, while N.C., Ind. face bans



Rhode Island Gov. Lincoln Chafee, shown here at a meeting with LGBT supporters, backs same-sex marriage rights. (Photo courtesy of Chafee’s office)

With “Don’t Ask, Don’t Tell” repealed, the issue of marriage returns to center stage in 2011 as many states are poised to enact same-sex marriage or civil unions legislation — or pursue measures that would repeal or block such rights for gay couples.

With new governors or changes to their state legislatures, Rhode Island, Maryland and New York could advance same-sex marriage legislation as soon as this year.

But changes in the political dynamic after the 2010 elections also mean that marriage rights could be repealed in New Hampshire and amendments banning same-sex marriage could go forward in North Carolina, Indiana and Pennsylvania.

Meanwhile, legislation to enact civil unions could advance in Hawaii and Delaware.

Rhode Island is among the states that could see early action in passing a same-sex marriage bill.

Newly seated Gov. Lincoln Chafee (I), who supports same-sex marriage, has replaced Gov. Donald Carcieri (R), who opposed gay nuptials.

In his inauguration address, Chafee encouraged the Rhode Island General Assembly “quickly consider and adopt” a same-sex marriage bill to send to his desk.

“When marriage equality is the law in Rhode Island, we honor our forefathers who risked their lives and fortune in the pursuit of human equality,” he said.

Same-sex marriage bills were introduced in both chambers of the Rhode Island General Assembly last week. House Speaker Gordon Fox, who’s gay, supports the passage of a marriage bill through his chamber.

Kathy Kushnir, executive director of Marriage Equality Rhode Island, said she thinks the marriage bill will come before the House Judiciary Committee before the end of January.

“So we’ll be holding hearings, and then, we’ll be looking at, of course, the committee vote and the floor vote as soon as possible,” she said.

Karen Loewy, senior staff attorney for Gay & Lesbian Advocates & Defenders, said the prospects for passing a marriage bill in Rhode Island are “really fantastic” and called Chafee an “active supporter” of the legislation.

“It was part of his inaugural address,” she said. “He’s really committed to getting a marriage bill passed.”

The Senate isn’t expected to take action on the marriage bill until the House finishes action on the measure. The legislative session ends in June, so the marriage bill would have to reach the governor’s desk by that time.

Kushnir said the biggest challenge in passing a marriage bill in Rhode Island is ensuring that lawmakers address the legislation as they take on other issues facing the state.

“There are really important issues also — the economy, jobs and the budget — that are before the legislature,” Kushnir said. “But you know what? Everyone knows that passing marriage equality and treating everybody equal here in Rhode Island does very well for all of those issues.”

Loewy said passage in the Senate remains “a stronger challenge,” but support should exist in the chamber to pass a marriage bill.

“Even there, I think, you’ve got folks who are ready to understand how important this is for same-sex couples in Rhode Island,” she said.

LGBT rights supporters are also optimistic about the chances of a same-sex marriage bill passing in Maryland, where the configuration of the Senate for the first time provides a path for passage.

Last month, a majority of members who support same-sex marriage were named to Senate Judicial Proceedings Committee, ensuring for the first time that a same-sex marriage measure would clear the panel and reach the Senate floor for a vote. Up until now, the committee has blocked the marriage bill, even though the chamber was in Democratic control.

Sen. Richard Madaleno of Montgomery Country, who’s gay, last week expressed confidence about passage of the marriage bill.

“I have never been so optimistic about getting this done,” he said. “Today at lunch I sat quietly by myself with a list of the members of the new Senate going over again and again in my head where the votes are, and I’m feeling really good right now both for the floor vote and the cloture vote.”

The bill is being introduced by Majority Leader Kumar Barve (D-Dist. 17) and Del. Keiffer Mitchell (D-Dist. 44). The Senate version will be advanced by Majority Leader Rob Garagiola (D-Dist. 15) and Madaleno.

Supporters in the Senate believe they have the 24 votes needed to pass the marriage bill on an up or down vote but are less certain about whether they have the 29 votes needed to invoke cloture and stop an expected filibuster by same-sex marriage opponents.

Another obstacle could be a referendum on the marriage law. Nearly all observers of the General Assembly expect opponents to initiate petitions to call for a referendum, which would stop the bills from taking effect until after voters decide on the issue.

In New York, supporters of same-sex marriage are looking to the state legislature to approve a bill extending marriage rights to gay couples that would be sent to newly seated Gov. Andrew Cuomo’s (D) desk for his signature.

As in previous years, a marriage bill is expected to be able pass again in the State Assembly, where Democrats have retained control of the chamber, but the situation is different in the Senate, where Republicans have regained control after the election.

Still, Republican Leader Dean Skelos suggested prior to the election that if Republicans regain power in the Senate, he would allow a vote on same-sex marriage to come, even though — like all GOP senators — he previously voted against the marriage bill.

“Let me just say, when we win back the majority, there is legislation that I believe all of you interested in, that I believe should be voted on again,” Skelos said in October. “We’re not going to stifle discussion. We are not going to stifle votes. And it is truly my belief that people should be allowed to vote their consciences.”

Even if the legislation comes up for a vote in the Senate, the prospects for passage are uncertain. When the bill previously came up for a vote late in 2009, the measure failed 24-38.

Two lawmakers who support same-sex marriage were elected to the Senate since the last vote on the legislation, but that change is far from the 32 votes needed to pass a bill in the Senate.

Ross Levi, executive director of the Empire State Pride Agenda, said the “political dynamic remains very promising” for passing a same-sex marriage bill as well as a transgender civil rights bill in New York.

“The phrase that I’ve been using is that there’s a clear and credible path to victory in the not distant future,” Levi said.

Asked whether passage would be likely in the next two years given the makeup of the legislature, Levi replied, “For me, it’s not talking about timeline, it’s about the work we have to do to make sure that we can have a successful vote as soon as we can.”

Dan Pinello, a gay government professor at the City University of New York, said he’s not optimistic about passage of a marriage bill in the legislature over the course of the next two years.

“[Skelos] has said a few things suggesting that [he would bring the bill to a vote], but that’s not a guarantee,” Pinello said. “So, yeah, he could bring it up for a vote, but that’s no guarantee it’s going to pass. I just don’t see it happening, sadly.”

Pinello said the next opportunity to advance same-sex marriage could be in 2013 as a result of the redistricting this year. He said political power should shift from upstate to downstate, which would give Democrats a majority in the Senate.

“Upstate tends to be Republican and downstate tends to be Democratic, so it’s likely even though Republicans will be redrawing the Senate district lines, there’s no way they can still maintain a majority, given the demographic shifts the Census will reveal,” Pinello said.

Repealing marriage in N.H.?

While several states are poised to advance marriage rights, other places could see a rollback of relationship recognition for same-sex couples.

The most prominent of those states is New Hampshire, where opponents of same-sex marriage may have the political power to repeal the marriage law enacted in 2009.

Gov. John Lynch (D), who signed the marriage bill into law, is expected to veto the bill should it come to his desk. But after the election, Republicans now have a super majority in both chambers of the legislature and could override his veto.

Four bills have already been introduced in the legislature to repeal the marriage law.

State Rep. Leo Pepino (R), who introduced one of the bills, said he thinks there is support to repeal the marriage law, according to the Nashau Telegraph.

“I think we have the votes [to repeal],” Pepino said. “We have a lot of really good conservatives and a good conservative doesn’t believe in gay marriage. … It’s a matter of ethics.”

GLAD’s Loewy said the chances of repealing the marriage law in New Hampshire are “hard to quantify,” adding she doesn’t know whether the votes are present to take such action.

“The LGBT community in New Hampshire is very much gearing up for a fight to protect marriage the best way we know how: by talking to legislators about how taking away marriage is going to hurt their families and their kids,” Loewy said.

Loewy added she’s hoping that New Hampshire won’t go down the path of repealing the law and would instead pursue “issues like jobs and the economy that everybody knows is the priority.”

“I think, like I said, the community has a lot of work to do, but, I think, it’s absolutely fair to expect and hope that that’s not the path that New Hampshire’s going to go down,” she said.

Mo Baxley, executive director of the New Hampshire Freedom to Marry Coalition, said the Granite State has never taken away the rights of its citizen, but that is what some anti-gay lawmakers are proposing to do.

“The married gay and lesbian couples here have in no way impacted anybody else’s marriage,” she said. “Let’s move on. Marriage has been debated to death here and the priority right now is the economy and the budget.”

Other states are prepared to advance constitutional amendments that would ban same-sex marriage.

One such state is North Carolina, where Republicans swept into power in both the House and Senate following the November elections.

Ian Palmquist, executive director of Equality North Carolina, said his organization is “fully expecting” that a constitutional amendment banning both same-sex marriage and marriage-like unions will advance this year.

“I think there’s a chance of blocking it, but it’s a very tight vote at the moment,” he said.

Palmquist said he’s getting mixed signals on when the vote would come up and said it could be anytime between February and July.

In North Carolina, passing a constitutional amendment requires a third-fifths vote of approval from both chambers of the state legislature followed by a majority of voters at the ballot box.

Palmquist said the measure could be on the ballot in 2011, but he expects it would come to voters in 2012. Such a move would enable conservatives to turn out their base during a presidential election year.

“It would definitely be a challenge to defeat it at the ballot,” Palmquist said. “There is majority support in North Carolina for some form of relationship recognition. We certainly would use that to try to stop this kind of amendment from moving forward.”

Another state where LGBT rights supporters are anticipating a constitutional ban on same-sex marriage and marriage-like unions is Indiana.

In previous years, advocates had been able to block the amendment in the House because Democrats held a narrow majority in the chamber, but the situation has changed now that Republicans took control of the House and expanded their control of the Senate following the November elections.

Don Sherfick, legislative chair for Indiana Equality, said the prospects for a constitutional ban on same-sex marriage passing this year are good in Indiana.

“I guess I would be less than honest if I were to say that things were looking rosy for continuing to unequivocally being able to fight such a thing coming through,” he said.

Anticipating hearings in either the House or Senate or both chambers within six weeks, Sherfick said Indiana Equality is mounting a public relations and lobbying campaign to try to block the amendment.

“People will at least know what they’re doing and we’ll set our sights on fighting it in the next legislature,” he said.

Bil Browning, an Indiana native and editor of the Bilerico Project, said he’s 99.9 percent certain that the Indiana Legislature would pass a constitutional amendment to ban same-sex marriage.

“The two things they wanted to do most and first and foremost was a bill that would require a woman to have a sonogram three days before any planned abortion — in the hopes that she’ll see it and not want to have the abortion — and a constitutional amendment prohibiting same-sex marriage,” Browning said.

For a constitutional amendment to pass in Indiana, it must pass the state legislature twice — a first time and then again after an election — before the measure comes before voters. If the legislature passed an amendment this year, the soonest it could get to voters is 2014.

Browning said gay rights supporters can hope for a change in the makeup of the legislature after the next election as a way to block the amendment from final passage.

“Two years from now, if we can retake the Indiana House it’s probably dead, but for at least passing this session, I’d say [the chances] are 99.9 percent,” he said.

Browning said one factor working in advocates’ favor in Indiana is that all the Fortune 500 companies headquartered in the state previously testified before the legislature against the amendment.

Additionally, Gov. Mitch Daniels (R), who has called for a “truce” on social issues, is widely considered to be thinking about a run for president and may want to steer clear of marriage prior to 2012. Still, the amendment wouldn’t require his signature for passage.

A similar situation can be found in Pennsylvania, where Republicans took control of the House and retained control of the Senate.

Malcolm Lazin, executive director of the Philadelphia-based Equality Forum, said passage of a constitutional ban on same-sex marriage is “of concern” because of new Republican control of the House.

“We were able to successfully block it in the past because the House was controlled by the Democrats,” Lazin said. “That dynamic has now changed. In addition, there is now a Republican governor of Pennsylvania.”

As in Indiana, for a constitutional amendment to pass in Pennsylvania, the measure has to be approved by a majority vote in both chambers of the legislature — once and then again after an election — before going to voters as a ballot measure.

Ted Martin, executive director of Equality Pennsylvania, predicted that the amendment would be introduced in both the House and Senate, but was skeptical of lawmakers’ ability to push it through the legislature.

Martin said the likelihood of the measure passing in the House committee is high, but its passage on the House floor is less certain. For the Senate, which has been controlled by Republicans for more than two decades, Martin said he doubts the measure would make it through committee.

“The Senate, in the past, has always taken a less active tone about it,” Martin said. “They’ve become much more libertarian in their view. Just to remember, we were able to block this in committee three times before.”

Hawaii, Del. to take up civil unions

As many states take on the marriage issue — either to advance gay nuptials or ban them — two other states are prepared to enact civil unions early in 2011.

In Hawaii, LGBT advocates are ready to advance a civil unions bill that newly seated Gov. Neil Abercrombie (D) has pledged to sign.

Last summer, a civil unions bill in the Aloha State was vetoed by former Republican Gov. Linda Lingle, but with her gone, gay rights supporters see a clear path toward passing the legislation.

Alan Spector, co-chair of Equality Hawaii, said he expects that the civil unions bill will easily pass the legislature to reach Abercrombie’s desk soon after the session starts on Jan. 19.

“With the November 2010 election behind us, and a new governor and new leadership, we’re pretty confident that we will pass the bill early in 2011,” Spector said.

Spector estimated that the legislation would be introduced in the third week of January and ideally would make it to the governor’s desk by March.

“The process can go as quickly as a month or it can take the whole session — or it can on into 2012,” Spector said. “It all depends on what happens, but we’re pretty optimistic that it’s going to go quickly this year.”

Advocates are pursuing civil unions in Hawaii instead of marriage because in 1998, voters approved a constitutional amendment granting the legislature the power to ban same-sex marriage, which lawmakers then pursued.

Similarly, LGBT advocates in Delaware are ready to advance legislation this year that would enact civil unions in the First State.

Peter Schott, political vice president of Delaware Stonewall Democrats, said the “atmosphere is probably better than it’s been in a few years” for passing civil unions in the state.

“We have formed a coalition, which a number of elected officials are on — civic leaders,” Schott said.

LGBT rights supporters know they have the votes in the House, Schott said, but questions about passage in the Senate remain because leadership could refer the legislation to an unfavorable committee.

Schott said supporters of civil unions in Delaware want to pass the legislation this year so it doesn’t come up during the 2012 election season.


Federal Government

Department of Education to investigate Nex Benedict’s Okla. school district

Nonbinary student died last month after students assaulted them



Nex Benedict (Family photo)

On Friday the U.S. Department of Education informed Human Rights Campaign President Kelley Robinson that the department will open an investigation in response to HRC’s letter regarding Owasso Public Schools and its failure to respond appropriately to sex-based harassment that may have contributed to the death of Nex Benedict, a 16-year-old nonbinary teenager of Choctaw heritage. 

This investigation was triggered by a formal complaint made last week by Robinson, who wrote to Education Secretary Miguel Cardona and asked his department to use the enforcement mechanisms at its disposal to prevent similar tragedies from taking place in the future and to help hold accountable those responsible for Benedict’s death.

The letter from the Department of Education reads: “the U.S. Department of Education, Office for Civil Rights (OCR), is opening for investigation the above-referenced complaint that you filed against the Owasso Public Schools (the District.) Your complaint alleges that the District discriminated against students by failing to respond appropriately to sex-based harassment, of which it had notice, at Owasso High School during the 2023-2024 school year,” said Robinson.

“Nex’s family, community and the broader 2SLGBTQI+ (two-spirit, lesbian, gay, bisexual, transgender, queer and intersex+) community in Oklahoma are still awaiting answers following their tragic loss. We appreciate the Department of Education responding to our complaint and opening an investigation — we need them to act urgently so there can be justice for Nex, and so that all students at Owasso High School and every school in Oklahoma can be safe from bullying, harassment and discrimination,” Robinson added.

According to the letter, OCR is opening the following issues for investigation:

  • Whether the District failed to appropriately respond to alleged harassment of students in a manner consistent with the requirements of Title IX.
  • Whether the District failed to appropriately respond to alleged harassment of students in a manner consistent with the requirements of Section 504 and Title II.

HRC sent a second letter to the Department asking it to promptly begin an investigation into the Oklahoma State Department of Education, as well as the current State Superintendent of Public Instruction, Ryan Walters. In addition:

  • Robinson wrote to Attorney General Merrick Garland asking the Department of Justice to begin an investigation into Nex’s death.
  • Robinson wrote to Dr. Margaret Coates, superintendent of the Owasso School District in Oklahoma, calling for the superintendent to take advantage of HRC’s Welcoming Schools program — the most comprehensive bias-based bullying prevention program in the nation to provide LGBTQ and gender inclusive training and resources — and offering to bring experts to the district immediately.

The full text of the letter from the Department of Education in response to HRC can be found here.

The full text of the initial letter from Robinson to Cardona can be found here.

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District of Columbia

Judy and Dennis Shepard discuss Nex Benedict, anti-LGBTQ laws at DC event

Nonbinary Okla. high school student died last month after fight



Dennis and Judy Shephard speak at the Raben Group’s D.C. offices on Feb. 29, 2024. (Washington Blade photo by Amber Laenen)

Judy and Dennis Shepard on Thursday reflected on Nex Benedict’s death and the proliferation of anti-LGBTQ laws across the country during a discussion the Raben Group hosted at their D.C. office.

The discussion, which MSNBC host Jonathan Capehart moderated, took place less than a month after Benedict died.

Benedict, who was nonbinary, passed away on Feb. 8 after students at their high school in Owasso, Okla., assaulted them in a bathroom. 

Vice President Kamala Harris, White House Press Secretary Karine Jean-Pierre, House Speaker Emerita Nancy Pelosi (D-Calif.) and Republican Oklahoma Gov. Kevin Stitt are among those who have publicly responded to Benedict’s death, which took place after they endured months of bullying. More than 300 advocacy groups have demanded Oklahoma Superintendent of Public Instruction Ryan Walters’ removal and called for a federal investigation into the Oklahoma Department of Education’s “actions and policies” that have facilitated a “culture where rampant harassment of 2SLGBTQI+ students has been allowed to go unchecked.”

“Parents are doing whatever they can to protect and encourage and support kids, and you have these what I call evil, evil people around the country pushing these laws,” said Dennis Shepard.

He noted lawmakers around the country are pushing anti-LGBTQ laws and other efforts that include the elimination of diversity, equity and inclusion programs. Dennis Shepard also highlighted an effort to defund gender studies programs at the University of Wyoming.

“[It is] the old white male, Christian geezers who want to go back to the days of the 50s when they had that superior arrogant attitude,” he said. “They’re losing it and they don’t want to, so they’re passing everything they can.”

“What happened to Nex is a result of that,” added Dennis Shepard. “They feel like Henderson and McKinney felt when they took Matt out on the prairie.”

Matthew Shepard died on Oct. 12, 1998, after Russell Henderson and Aaron McKinney brutally beat him and left him tied to a fence in Laramie, Wyo. Then-President Barack Obama in 2009 signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which added sexual orientation and gender identity to the federal hate crimes law.

“If you’re considered different, you’re in fear of your life right now because you don’t fit in and it’s got to stop,” said Dennis Shepard.

Judy Shepard echoed her husband, noting this moment is “the last gasp of the fight against the community.” 

“In my heart, I know this is a moment in time, and it’s going to pass. But also in that time, all these young people, everyone in the community is afraid, but young people are being terrorized,” she said. “It just shouldn’t be happening.”

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U.S. Federal Courts

N.Y. AG joins multi-state brief in Colo. anti-trans discrimination case

Letitia James and 18 other attorneys general support plaintiff



trans health care, gay news, Washington Blade
New York Attorney General Letitia James (Photo public domain)

New York Attorney General Letitia James on Wednesday joined a brief by 18 other Democratic state attorneys general urging the Colorado Supreme Court to uphold a lower court ruling against Masterpiece Cakeshop for anti-trans discrimination.

A customer, Autumn Scardina, sued the business over claims that it refused to provide her a cake upon learning that it was for a celebration of her transition. The case is not the first in which owner Jack Smith has faced claims of anti-LGBTQ discrimination.

In 2012, Masterpiece Cakeshop refused to fulfill an order for a wedding cake for a same-sex couple, which led to the 2018 U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission — and a narrow ruling that did not address core legal questions weighing the constitutionality of First Amendment claims vis-a-vis the government’s enforcement of LGBTQ-inclusive nondiscrimination laws.

“Denying service to someone simply because of who they are is illegal discrimination, plain and simple,” James said in a press release. “Allowing this kind of behavior would undermine our nation’s fundamental values of freedom and equality and set a dangerous precedent.”

She added, “I am proud to stand with my fellow attorneys general against this blatant transphobic discrimination.”

The Colorado Court of Appeals ruled in favor of Scardina, noting that Smith objected to fulfilling her cake order only after learning about her intended use for it “and that Phillips did not believe the cake itself expressed any inherent message.”

The fact pattern in both cases against Masterpiece Cakeshop resembles that of another case that originated in Colorado and was ultimately decided by the Supreme Court last year, 303 Creative LLC v. Elenis.

This time, the justices did not sidestep the question of whether the state’s anti-discrimination law can be enforced against a business owner, Lorie Smith, a website designer who claimed religious protections for her refusal to provide services to a same-sex couple for their nuptials.

The court’s conservative supermajority ruled in favor of Smith, which was widely seen as a blow to LGBTQ rights.

Joining James in her brief are the attorneys general of Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and D.C.

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