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Obama has leeway in defense of DOMA: activists

GLAD says Justice has made some accomodations, but can go further

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The heads of LGBT legal organizations say that the Obama administration has considerable leeway in how it defends the Defense of Marriage Act in court — even if officials believe they’re obligated to uphold the statute.

The Obama administration’s defense of DOMA, which prohibits the federal recognition of same-sex marriage, has inspired debate among LGBT rights supporters about whether the Justice Department is required to defend the law.

The LGBT advocates commented on the issue during an eQualityThinking panel on Monday in response to a question from moderator and Washington Blade editor Kevin Naff.

Kevin Cathcart, executive director of Lambda Legal, said he’s “not completely convinced” the Justice Department is compelled to defend DOMA, but said even it is, the administration doesn’t need to use every argument to defend the statute.

“They have great leeway in deciding what arguments they will make and what arguments they won’t make,” Cathcart said. “I don’t accept the notion that if they have to defend, it means they have to throw in arguments that have been discredited and argue issues that should never see the light of day.”

Kate Kendell, executive director of the National Center for Lesbian Rights, noted the Obama administration has mounted “a more full-throated defense” than what was necessary in its early defense of DOMA.

The 2009 defense of DOMA in the case of Smelt v. United States, the first brief the Obama administration filed in defense of the law, inspired resentment in the LGBT community early last year for drawing on case law to compare same-sex marriage to pedophilia and bestiality.

“They included very offensive language around parenting,” Kendell said. “It wasn’t a direct comparison between LGBT relationships and pedophilia or bestiality, but it was close enough, and it was appalling.”

Kendell said her organization has had conversations with the Justice Department to make clear that those arguments were not only unacceptable and baseless. Following these conversations, she said the Obama administration made some changes in how it defended DOMA.

“They have made some accommodations that well reflect the values that the administration say[s] they espouse, but I think — I’ll speak for ourselves for our purposes and to our case — they certainly haven’t gone as far as they should go,” Kendell said.

Lee Swislow, executive director of Gay & Lesbian Advocates & Defenders, said even if the Obama administration opted not to defend DOMA, the Justice Department would have to formally notify Congress to give lawmakers the opportunity to defend the statute.

“There is a possibility for the Justice Department not to defend, but that doesn’t mean there won’t be a defense of the laws that Congress passes,” she said.

GLAD has filed two lawsuits against DOMA: Gill v. Office of Personnel Management, which is pending before the U.S. First Circuit Court of Appeals, and Pedersen v. Office of Personnel Management, which is pending before the U.S. District Court of Connecticut.

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Congress

Congress passes ‘Big, Beautiful Bill’ with massive cuts to health insurance coverage

Roughly 1.8 million LGBTQ Americans rely on Medicaid

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U.S. House Speaker Mike Johnson (R-La.) (Washington Blade photo by Michael Key)

The “Big, Beautiful Bill” heads to President Donald Trump’s desk following the vote by the Republican majority in the U.S. House of Representatives Thursday, which saw two nays from GOP members and unified opposition from the entire Democratic caucus.

To partially offset the cost of tax breaks that disproportionately favor the wealthy, the bill contains massive cuts to Medicaid and social safety net programs like food assistance for the poor while adding a projected $3.3 billion to the deficit.

Policy wise, the signature legislation of Trump’s second term rolls back clean energy tax credits passed under the Biden-Harris administration while beefing up funding for defense and border security.

Roughly 13 percent of LGBTQ adults in the U.S., about 1.8 million people, rely on Medicaid as their primary health insurer, compared to seven percent of non-LGBTQ adults, according to the UCLA School of Law’s Williams Institute think tank on sexual orientation and gender identities.

In total, the Congressional Budget Office estimates the cuts will cause more than 10 million Americans to lose their coverage under Medicaid and anywhere from three to five million to lose their care under Affordable Care Act marketplace plans.

A number of Republicans in the House and Senate opposed the bill reasoning that they might face political consequences for taking away access to healthcare for, particularly, low-income Americans who rely on Medicaid. Poorer voters flocked to Trump in last year’s presidential election, exit polls show.

A provision that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation — reportedly after the first trans member of Congress, U.S. Rep. Sarah McBride (D-Del.) and the first lesbian U.S. senator, Tammy Baldwin (D-Wis.), shored up unified opposition to the proposal among Congressional Democrats.

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Congress

Ritchie Torres says he is unlikely to run for NY governor

One poll showed gay Democratic congressman nearly tied with Kathy Hochul

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U.S. Rep. Ritchie Torres (D-N.Y.) (Washington Blade photo by Michael Key)

Gay Democratic Congressman Ritchie Torres of New York is unlikely to challenge New York Gov. Kathy Hochul (D) in the state’s next gubernatorial race, he said during an appearance Wednesday on MSNBC’s “Morning Joe.”

“I’m unlikely to run for governor,” he said. ““I feel like the assault that we’ve seen on the social safety net in the Bronx is so unprecedented. It’s so overwhelming that I’m going to keep my focus on Washington, D.C.”

Torres and Hochul were nearly tied in a poll this spring of likely Democratic voters in New York City, fueling speculation that the congressman might run. A Siena College poll, however, found Hochul leading with a wider margin.

Back in D.C., the congressman and his colleagues are unified in their opposition to President Donald Trump’s signature legislation, the “Big Beautiful Bill,” which heads back to the House after passing the Senate by one vote this week.

To pay for tax cuts that disproportionately advantage the ultra-wealthy and large corporations, the president and Congressional Republicans have proposed massive cuts to Medicaid and other social programs.

A provision in the Senate version of the bill that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation, reportedly after pressure from transgender U.S. Rep. Sarah McBride (D-Del.) and lesbian U.S. Sen. Tammy Baldwin (D-Wis.).

Torres on “Morning Joe” said, “The so-called Big Beautiful Bill represents a betrayal of the working people of America and nowhere more so than in the Bronx,” adding, “It’s going to destabilize every health care provider, every hospital.”

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Congress

House Democrats oppose Bessent’s removal of SOGI from discrimination complaint forms

Congressional Equality Caucus sharply criticized move

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Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A letter issued last week by a group of House Democrats objects to Treasury Secretary Scott Bessent’s removal of sexual orientation and gender identity as bases for sex discrimination complaints in several Equal Employment Opportunity forms.

Bessent, who is gay, is the highest ranking openly LGBTQ official in American history and the second out Cabinet member next to Pete Buttigieg, who served as transportation secretary during the Biden-Harris administration.

The signatories to the letter include a few out members of Congress, Congressional Equality Caucus chair and co-chairs Mark Takano (Calif.), Ritchie Torres (N.Y.), and Becca Balint (Vt.), along with U.S. Reps. Nikema Williams (Ga.), Hank Johnson (Ga.), Raja Krishnamoorthi (Ill.), Delia Ramirez (Ill.), Joyce Beatty (Ohio), Lloyd Doggett (Texas), Eleanor Holmes Norton (D.C.), Josh Gottheimer (N.J.), and Sylvia Garcia (D-Texas).

The letter explains the “critical role” played by the EEO given the strictures and limits on how federal employees can find recourse for unlawful workplace discrimination — namely, without the ability to file complaints directly with the Employment Opportunity Commission or otherwise engage with the agency unless the complainant “appeal[s] an agency’s decision following the agency’s investigation or request[s] a hearing before an administrative judge.”

“Your attempt to remove ‘gender identity’ and ‘sexual orientation’ as bases for sex discrimination complaints in numerous Equal Employment Opportunity (EEO) forms will create unnecessary hurdles to employees filing EEO complaints and undermine enforcement of federal employee’s nondiscrimination protections,” the members wrote in their letter.

They further explain the legal basis behind LGBTQ inclusive nondiscrimination protections for federal employees in the EEOC’s decisions in Macy v. Holder (2012) and Baldwin v. Foxx (2015) and the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020).

“It appears that these changes may be an attempt by the department to dissuade employees from reporting gender identity and sexual orientation discrimination,” the lawmakers wrote. “Without forms clearly enumerating gender identity and sexual orientation as forms of sex discrimination, the average employee who experiences these forms of discrimination may see these forms and not realize that the discrimination they experienced was unlawful and something that they can report and seek recourse for.”

“A more alarming view would be that the department no longer plans to fulfill its legal obligations to investigate complaints of gender identity and sexual orientation and ensure its
employees are working in an environment free from these forms of discrimination,” they added.

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